Do I get compensated for pain/suffering/disruption of lifestyle in the workers' comp system?

Unfortunately, workers' compensation law does not provide any sort of remedy for pain and suffering associated with your work injury. Workers' compensation law does not provide any monetary relief for the general disruption of your lifestyle and the aggravation or inconvenience which was caused by your work injury. This is obviously a very difficult reality to face, because oftentimes the financial remedies that are provided by the law don't come close to compensating you for the difficulties faced after a life-changing injury.

If you've sustained a work injury, there are only three kinds of relief that can be provided in a workers' compensation context: (1) lost wages (TTD or TPD benefits); (2) permanent impairment of physical capabilities (PPD benefits); and (3) medical care.

If you have any questions about your workers' compensation case, please let me know. Even if you're not in the Athens, Georgia area, we will gladly do everything we can to assist you with your claim.

Quick Definitions: "Impairment Rating"

Also sometimes called a "PPD rating," this is the percentage of impairment that the ATP assigns to the specific body part that was injured in a work accident, or to the body as a whole. It is usually assigned towards the end of your treatment. This rating, which must be based upon the American Medical Association's Guides to the Evaluation of Permanent Impairment (5th Edition), is used to calculate your entitlement to PPD benefits.

Quick Definitions: "PPD Benefits"

PPD is the abbreviation for Permanent Partial Disability.  This is one of three types of weekly benefits that may be payable after a work accident.  PPD benefits are designed to compensate the injured worker for the permanent physical impairment sustained to a particular body part or the body as a whole as a result of a work injury. They are based upon a percentage of impairment, or impairment rating, that your ATP assigns to your injury.

For more information on PPD benefits, please look here. To compare to the other two types of weekly benefits, TTD and TPD, please look here, here and here.

I think my weekly benefit check is more than it should be. Should I speak up?

Unfortunately, and as hard as it is to voluntarily give up income in a time when you're struggling to make ends meet because of your injury, the answer is yes.  According to Georgia workers' compensation law, employer/insurer's are allowed to recoup or recover benefits that were overpaid to an injured worker (fortunately, there are restrictions placed on how far back in time the recovery can reach). If the worker is currently receiving a weekly income benefit or if he or she is entitled to benefits in the future, the employer/insurer can take a credit against those benefits.

The amount of the credit taken against ongoing income benefits is usually worked out between the employer/insurer and the worker (or his or her attorney). For example, if you're currently supposed to be receiving $400.00 per week in TTD benefits, but you were previously paid at an erroneous higher rate which resulted in an overpayment of $2,000.00, an arrangement could be reached whereby you would only receive $350.00 per week until the employer/insurer recovered the full amount of the overpayment.

Even if you aren't entitled to any additional benefits and you don't even work for the employer anymore, a garnishment action can be commenced against you at your current place of employment. Needless to say, this will create an enormous inconvenience and burden on you as you try to move on with your life.

Fair or not, that's the way the law works. The problem is, the vast majority of workers have no idea how workers' compensation benefits are calculated, and they therefore would have no reason to suspect that their employer has made an error in the calculation. Why should an injured worker be punished down the line for innocently receiving an overpayment that was the result of the insurance adjuster's mistake? Moreover, there are many times when the miscalculation in your compensation rate is so small that you'd never have reason to suspect there was an overpayment.

This is precisely the reason why I'm writing this post--to provide basic information for workers to help avoid this potential inconvenience.  So, if you have any reason to believe that you're receiving more than you should--such as, you were a part-time employee and your weekly benefit is nearly identical to the paycheck you received prior to your injury--it is a good idea to go ahead and report it to your employer. Chances are, the employer will soon uncover the miscalculation and they will, without a doubt, come after you to recover the money. A little honesty in the beginning can save you from a big headache later on.

Also, it's worth noting that these issues can get really complicated and messy, so it's a very good idea to have an attorney on your side to help ensure that your best interests are fully represented. If you have any questions about your workers' comp case, please let me know. Even if you're not in the Athens, Georgia area, give us a call and we will gladly help you with your case.

Quick Definitions: "Compensation Rate"

An injured worker's "compensation rate" is the amount of money which is payable to an injured worker on a weekly basis for either TTD, TPD or PPD benefits. It is derived from the worker's average weekly wage ("AWW").

For TTD and PPD benefits, the compensation rate is calculated by taking 2/3 of the AWW.

For TPD benefits, the compensation rate is calculated by comparing the AWW of the injured worker prior to the accident to the AWW after the accident. The precise compensation rate is determined by taking 2/3 of the difference between the two AWW's. Thus, if the pre-accident AWW was $400.00, and the post-accident AWW was $300.00, then the compensation rate would be 2/3 of $100.00, or $66.67 (this amount would be paid by the insurer in addition to the worker's regular paycheck).

Quick Definitions: "TPD Benefits"

"TPD" is short for Temporary Partial Disability. This is a type of weekly income benefit that may be payable after a work accident. It is "temporary" because there's a cap on the number of weeks that these benefits can be received by the injured worker, and it's "partial" because they're payable when the injured worker's ability to work a full schedule has been diminished--such as when you're only able to work 20 hours per week instead of 40. They are designed to compensate the injured worker for the partial loss of income as a result of the work injury.

For more information on this type of benefit, please look here. To compare to TTD benefits, please look here.

Overview of Permanent Partial Disability (PPD) Benefits

When are they payable?

As I discussed in a previous post, there are three types of weekly benefits that may be payable to an injured worker after a work accident.  The previous post focused on TTD and TPD benefits, which are payable if the injured worker has suffered a disability due to his or her work accident. The third type of benefit, commonly abbreviate as "PPD," is only payable after the injured worker is no longer receiving TTD or TPD benefits. In other words, if you're currently receiving either TTD or TPD benefits, you cannot also receive PPD benefits at the same time.  

What is the purpose of PPD benefits?

Before I go any further, it's important to note the different purposes the three types of benefits serve under the law. While TTD and TPD benefits are paid to injured workers to compensate them for their diminished earning capacity due to the injury (loss of income), PPD benefits compensate injured workers for (1) the entire loss of a body part; (2) the loss of the use of a body part; or (3) the impairment to the injured worker's "body as a whole."

How is the amount of PPD benefits determined for each injury?

This can get a little complicated, so I'll try to keep this brief. The amount payable for a particular injury is based upon a percentage of impairment (often called an "impairment rating" or "PPD rating") which is assigned by the authorized treating physician ("ATP") to a particular body part or the "body as a whole." To determine the percentage of impairment, the ATP is required to consult the American Medical Association's Guides to the Evaluation of Permanent Impairment. For example, if you've injured your arm, the ATP will apply his knowledge of your treatment and your current condition to the AMA Guides and determine the percentage of impairment, such as 15%.  This percentage is then matched with the number of weeks assigned to each body part by Georgia law, which ranges from 20 weeks for a toe injury to 300 weeks for a back or whole body impairment.

For our example, the law states that you could receive up to 225 weeks of PPD benefits for the impairment of an arm (if you lost the arm completely, you would receive 225 weeks of PPD benefits). For a 15% impairment rating, you would be entitled to 33.75 weeks of PPD benefits (this is 15% of 225 weeks).  One more thing--the precise dollar amount of an injured worker's weekly PPD benefit, just like TTD or TPD benefits, is determined by the worker's compensation rate.

What is the "Panel of Physicians?"

The panel of physicians is a list of medical care providers that an employer must maintain for the purpose of giving employees treatment options in the event of a work injury. This list is typically a pink-colored sheet of paper that must be posted in a “prominent place” upon the employer’s premises, such as the breakroom or next to the punch in/out clock. There are three different types of panels which may be utilized by Georgia employers, all of which must meet certain requirements in order to be deemed a “valid” panel. The following is a general outline of the basic differences in the respective panels: 

1. The “Traditional” Panel – This type of panel must have list of at least six (unless this number is not feasible in a given geographical area) unassociated medical care providers to be valid. If Doctor A and Doctor B both work in the same clinic, they are not “unassociated” for purposes of the Traditional panel. Moreover, the law does not allow for more than two “industrial clinics” to be listed on the panel, and there must be at least one orthopedist listed.
2. The “Conformed” Panel – This type of panel must have a minimum of ten unassociated medical care providers (the same definition of “unassociated” applies here). Although an employer’s utilization of a Conformed panel initially gave an injured worker different rights than the Traditional panel, the law has changed such that the only practical difference between the two panels is simply the number of care providers listed. Also, this type of panel will state “Conformed” at the top of the document serving as the panel of physicians. Thus, if the panel states that it is “Conformed” at the top of the document, but only lists six physicians, it would be deemed invalid. 
3. Managed Care Organization (MCO) – An MCO provides a much more expansive network of medical care providers than that of the Traditional and Conformed panels, and there are stricter requirements for the types of physicians that must be listed. This network of physicians is compiled by an organization with whom a self-insured employer or a workers’ compensation insurance carrier enters into a contract. Simply put, the MCO compiles a list of physicians, and then the employer or its insurer enters into a contract with the MCO which allows the employer to send its injured workers to the care providers on the list. Just like the Traditional and Conformed panels, however, the law requires that the MCO procedures be posted in a prominent place on the employer’s premises. 

It should be noted that there are requirements in addition to those mentioned above which must be adhered to by employers with respect to the panel of physicians. If any of the requirements aren’t satisfied, Georgia law states that the injured worker may then commence treatment with the doctor of his or her choosing.

If you have any questions about your workers' comp case or the panel of physicians, please let me know. Even if you're not in the Athens, Georgia area, give us a call and we will gladly help you with your case.

I was hurt at work. Can I treat with any doctor I want?

Not exactly. An injured worker must choose from one of the physicians listed on the employer’s panel of physicians (there are three kinds of panels of physicians: traditional, conformed, and MCO). Although Georgia law states that it is the injured worker’s right to choose which physician he or she would like to have designated as the authorized treating physician (ATP), this usually doesn’t happen. From my experience, it is usually the employer who chooses and sends the injured worker to one of the physicians on the panel once the injury is reported.

It’s also important to point out that if a worker is injured at a time when it is not possible to go to a panel physician (such as late at night when the clinic is closed), and the injury is serious enough to warrant immediate care, the employer will be responsible for expenses incurred as a result of the emergency care. For example, if you are injured late at night and have to go to the nearest emergency room, the employer will be responsible for the ER bill. However, this doesn’t mean that the ER physician is your ATP. At some point in the subsequent days, you will be given the option to choose a panel physician as your ATP.

Tip:  Don’t let the employer force you to treat with a doctor you don’t want to go see. It is your right to choose which physician you would like to have designated as the ATP. Having said that, if you have no preference and don’t know anything about any of the doctors, it would only serve to complicate things if you object to the physician recommended by the employer for no other reason than to assert your right to choose. In other words, don’t argue for the sake of arguing, as this could create a hostile situation between you and your employer and make your time out of work even more inconvenient than it already is. If you are dissatisfied with the care provided by your first ATP, you have the right to make a one-time change of physicians to a different doctor—but this new doctor must also be listed on the panel (unless the panel is invalid, in which case you can choose any doctor at all). You only get one chance to make a change, however, so this choice should be made very, very carefully.

Quick Definitions: "Authorized Treating Physician"

The authorized treating physician ("ATP") is an injured worker's primary doctor (usually the first doctor you go to). Every injured worker has one ATP who provides routine care and can also "arrange for any consultation, referral, and extraordinary or other specialized medical services" (like a referral to an orthopedist or neurologist). The ATP holds a lot of power over your claim, not only because he or she is providing your primary treatment and can make referrals, but also because an administrative law judge will almost always honor the ATP's opinion or decision regarding your treatment. If you're not satisfied with your treatment, however, the law does allow for a one-time change of the ATP (with certain restrictions).

Did You Know? (Lifetime Medical Care Edition)

Did you know that an injured worker is entitled to lifetime medical care as long as it relates to his or her work injury? However, this medical care can't come from just any doctor--it must come from an authorized treating physician.  Moreover, the law states that the medical care must be "reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment."

Tip:  Many times, an employer will try to cut an injured worker off from receiving additional care by arguing that he or she has returned to "pre-injury status"--especially if there was a pre-existing condition similar to the work injury--or that the additional care is no longer reasonable. In these situations, it's important to have an attorney to fight on your behalf to ensure that you receive proper care for your injury.

Did You Know? (TTD Benefits Edition, Part 2)

Did you know that there is a cap on the number of weeks that an injured worker may receive TTD benefits? Georgia law has placed a 400-week limit on these benefits--that's a little over 7.5 years, for those wanting to pull out a calculator--hence the name "Temporary Total Disability."

This cap is removed if an injury is declared "catastrophic," but the vast majority of workers' comp claims don't fall into the catastrophic category.

Did You Know? (Notice of Accident Edition)

Did you know that you could be denied both medical and income benefits if you fail to report your work accident within 30 days of its occurrence? There are situations where a failure to report the injury will not preclude an injured worker from recovering such benefits, but the key thing to remember is that it is very important to report your injury to your employer as soon as possible so as to avoid any future complications from the failure to do so.

Tip:  While the notice doesn't necessarily have to be in writing, and even if your supervisor tells you to work through it, it is typically a good practice to document your complaint for future reference.

Quick Definitions: "Disability"

As used in the workers' compensation context, the word "disability" means impairment or diminution of earning capacity. In other words, an injury that has caused a worker to earn less than he or she did before the work accident constitutes a "disability."

Quick Definitions: "TTD Benefits"

"TTD" is short for Temporary Total Disability. This is a type of weekly income benefit that may be payable after a work accident. These benefits are designed to compensate the injured worker for the loss of income as a result of the work accident. They are "temporary" because there's a cap on the number of weeks that these benefits can be received by the injured worker, and they're "total" because they're payable when the injured worker cannot work in any capacity.

For more information on this type of benefit, please look here or here.

Judge: Online Privacy is just "wishful thinking"

“Privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

Pretty harsh—but also pretty accurate. This is the language from the judge in a recent ruling in the New York case, Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y.Sup. September 21, 2010) regarding online privacy. I found this case on Twitter through @internetcases, which is the profile of Evan Brown, an attorney in Chicago. You can read his summary of the case here.

In essence, this case addressed whether information on the Plaintiff’s Facebook and Myspace pages could be withheld during discovery, irrespective of her privacy settings. (“Discovery” is a legal term describing a period of time during which the parties use various methods to gather as many facts as possible about the case). As you can tell from the quote at the top of this post, the judge determined that all of the contents had to be turned over to the other party.

Tip:  While this isn't a Georgia case and doesn't pertain to workers' compensation, there's nonetheless an important lesson to be learned here: social media sites can affect your case in a negative way, and courts aren’t allowing people to hide harmful information. And based on this ruling, this is true even if you think you have “hidden” it from the public in your personal privacy settings, or if you have deleted certain content! (Yep, Facebook and Myspace store deleted information). So, again, be careful what you broadcast to the public, because it may very well come back to bite you.

Did You Know? (TTD Benefits Edition, Part 1)

Did you know that there is a cap/limit on the amount of TTD benefits you can receive per week? For injuries occurring on or after July 1, 2007, the maximum amount an injured worker can receive is $500.00 per week.  This maximum applies even if you're making Bill Gates' salary. For injuries occurring prior to July 1, 2007, the maximum amount is less than $500.00 and is dependent upon the date of accident (the Georgia legislature changes the maximum amount every several years).

Did you know? (Panel of Physicians Edition)

Did you know that if the "Panel of Physicians" maintained by the Employer is not valid (for example, if it does not contain up-to-date information or if it does not comply with the requirements of the Georgia statute), then an injured worker "may select any physician to render service at the expense of the employer"? (O.C.G.A. ' 34-9-201).

Tip:  If you've been injured at work, always ask to have a copy of the Panel of Physicians that was posted on the date of your accident--it may come in handy if you're not satisfied with the treatment provided by the physician chosen by the Employer.

The "All Issues" Statute of Limitations

A legal term gets thrown around at times that a lot of people might not understand—“statute of limitations.” In essence, this concept says that you only have a certain period of time during which you can file a lawsuit after the event happened which gave rise to the claim (like a work injury or a breached contract). An easy way to remember what it means is by its abbreviation: SOL. As in, once the period expires, you are “sure/simply/so out of luck.” Cough cough.

In a workers’ compensation context, if you’ve been physically injured at work, Georgia recognizes two (2) different statutes of limitation: a “change in condition” SOL and an “all issues” SOL. The “change in condition” SOL, which will be addressed in a later post, applies when a judge has actually issued a specific ruling on your condition at some time after the work accident, or if the Employer has accepted liability and is CURRENTLY paying you weekly income benefits.

However, in the situation of “I was hurt at work, I am not currently receiving weekly income benefits, how long do I have to file my claim?”, it is the “all issues” SOL that applies. Notably, even if the Employer IS providing you with medical care (but isn’t currently paying weekly income benefits), the “all issues” SOL still applies.

As outlined by Georgia law, there are three (3) measuring periods which are covered by the “all issues” SOL. The applicable measuring period depends on the set of facts in your case:

1. One year from the date of injury. Note that this is the date of “injury,” and not “accident.” Thus, this time period begins to run only after the injury manifests itself. This period applies if the Employer never pays for your medical care and never pays you weekly income benefits—basically, if they just ignore the accident.
2. One year from the last medical treatment provided by the Employer. If the Employer keeps providing (paying for) your medical treatment, the statute keeps restarting itself.
3. Two years from the Employer’s last payment of weekly income benefits. If the Employer was paying you weekly income benefits and subsequently stopped, the statute would begin to run on the last date the income benefits were paid.

Which statute of limitations applies to you and how much time you have to file a claim can be a very complicated matter. And, if the “all issues” SOL has expired, it will prevent you from being able to receive any income benefits or medical care in the future—so, needless to say, a lot is on the line. If you have any questions regarding your workers’ compensation claim, please let us know so we can assist you with the process.

Computing Average Weekly Wage

In the event that you suffer an on-the-job injury, it is important to understand both the kinds of benefits to which you are entitled, as well as how to calculate such benefits. Unfortunately, insurance adjusters will occasionally make errors in calculating the amount of benefits which are due to an injured employee, so an understanding of how your benefits are calculated can be a valuable asset if you’ve been hurt at work. This post will very briefly discuss the three (3) methods by which an injured worker’s “average weekly wage” (AWW) is computed under Georgia law.

To determine the amount due to an injured worker for either TTD or TPD benefits (please see my previous post regarding TTD and TPD benefits), the worker’s AWW must first be computed. In most situations, this figure is calculated by taking the average of the total gross wages (pre-tax) earned for the 13 weeks preceding the date of accident. What are the components of these gross wages? AWW encompasses “salary, hourly pay, tips, and the reasonable value of food, housing and other benefits furnished by the employer without charge to the employee which constitute a financial benefit to the employee and are capable of pecuniary calculation.” (Board Rule 260(a)). In other words, if an employee receives $15.00 in gas money each week, this amount will be added to his or her regular salary.

However, there are often situations in which an employee has not been working for substantially the whole of the 13 weeks prior to the injury (like if the employee was hired only 5 or 6 weeks prior to the accident). In those situations, the AWW can be computed by averaging a “similarly situated employee’s” gross wages for the 13 weeks preceding the date of accident. Ideally, a “similarly situated employee” is someone performing the same job, on the same shift, with the same wages.

If the above 2 methods cannot be used, the last method by which an AWW can be computed is by taking the full-time average weekly wage of the employee. In other words, if an employee is paid $10.00 per hour and a full-time work week is 40 hours, then the AWW would be $400.00 per week.

Tip:  Again, insurance adjusters will often make errors in calculating an employee’s AWW and will not take into full account all of the potential components of the employee’s gross wages. For this reason, it is important to have an attorney on your side to help you maximize your weekly benefit while you recover from a work injury. Should you have any questions regarding any of the above, please let us know.

Overview of TTD and TPD Benefits

In Georgia, there are three (3) kinds of benefits which may be payable to a worker that has suffered an on-the-job accident, each payable weekly. This post will very briefly discuss two (2) of the three (3) types of such benefits: Temporary Total Disability (TTD) and Temporary Partial Disability (TPD). These benefits are dubbed “temporary” by the law because a cap is placed on the number of weeks an injured worker can receive them, which is discussed more fully below. The third type of benefits, Permanent Partial Disability (PPD), will be discussed in a later post.

At the outset, it is important to note that the term “disability” as used in the context of TTD and TPD benefits is defined as being a “diminution in earning capacity.” In other words, an injury which lessens or decreases your ability to earn money at your job is considered a “disability.”

TTD Benefits

As the name suggests, TTD benefits are due to an injured worker when his or her earning capacity has been “totally” impaired; meaning, he or she cannot return to work and is not making any money because of the injury. TTD benefits are computed by taking 2/3 of the worker’s average weekly wage (calculation of average weekly wage is discussed here). However, the maximum amount of TTD benefits which can be received each week is determined by the date of the work accident. Currently, the maximum compensation rate is $500.00 per week (thus, even if a worker’s AWW is $1,500.00 per week, he or she is only entitled to $500.00 per week in TTD benefits). Also, an injured worker can receive TTD benefits for a maximum of 400 weeks from the date of injury (unless the injury becomes “catastrophic,” which will be discussed in a later post).

TPD Benefits

Alternatively, if a worker has not been completely disabled and is able to return to work in a limited capacity (working fewer hours), or if he or she has been placed in a “light-” or “modified-duty” job which pays less than the job he or she held prior to the injury, TPD benefits come into play. If there is a loss in wages after the injury, the worker is entitled to recover 2/3 of the difference between the AWW wage before the injury and the AWW after the injury. However, TPD benefits are currently capped at $334.00 per week, and cannot be received for longer than 350 weeks from the date of injury. (Example: pre-injury AWW is $400.00 and post-injury AWW is $300.00. Worker is entitled to $66.67 of TPD each week, which is 2/3 of $100.00).

This can obviously get complicated, so if you have any questions, please let me know!

I was hurt at work. When can I receive workers' comp benefits?

In the event that you are injured on the job, you’re not automatically entitled to workers’ compensation benefits (other than medical treatment) for the first, second, or third day you miss work because of the injury. How many days do you have to wait before you can receive income benefits? In Georgia, a 7-day “waiting period” must elapse before an injured worker is entitled to income benefits.

Notably, the law counts all calendar days as a part of this waiting period (not just work days), and the days do NOT have to be consecutive. In other words, if you’re injured on a Monday, are out of work on Tuesday and Wednesday, return to work on Thursday, and then go out of work again on Friday, the computation of the waiting period would pick back up on Friday (Friday would be the 3rd day missed). On the 8th day missed due to your injury, your employer is required to start paying you income benefits.

So, now you've missed 7 days because of the injury and you're receiving income benefits. When do you get paid for those first 7 days you missed (the "waiting period")? The law in Georgia states that once an injured worker has missed 21 consecutive days due to his or her injury, the employer is required to retroactively pay income benefits for the first 7 days of disability after the injury.

To sum up, an injured worker must miss a total of 7 days, which don’t have to be consecutive, due to the injury before the employer is required to pay income benefits (again, medical care is provided without having to wait). Furthermore, in order to be entitled to income benefits for the first seven days of disability, the injured worker must miss 21 consecutive days.