Did You Know? (Termination From Employment Edition)

Did you know that if your Employer terminates you from your job because of your work injury, you are automatically entitled to the commencement of TTD benefits?

The question of whether the termination was actually due to the work injury is often a blurry one, because Employers will usually not document that the injury was the reason for the termination. Moreover, it is highly unlikely that an Employer will automatically begin paying workers' comp benefits to an employee they just terminated. 

Tip: If you have sustained a work accident and were later fired, it is highly advisable to contact an attorney to advocate for your rights. Even if the termination from employment was a part of a general lay-off (and was not related to the work injury), you may be entitled to receive TTD benefits if you are unable to find new employment because of your physical restrictions.

I injured my back at work and began receiving benefits. The next month, I injured my back again when I was playing basketball at home. Can the Employer suspend my benefits?

This is a very tricky question and there isn't a very clear cut answer. Chances are, you will be able to continue receiving workers' comp benefits for your back. However, the Employer will likely put up a pretty big fight against it.

Georgia law addresses what are commonly referred to as "independent intervening injuries" in O.C.G.A. 34-9-204(a), which states "No compensation shall be payable for the death or disability of an employee if his or her death is caused by or, insofar as his or her disability, may be aggravated, caused, or continued by a subsequent nonwork related injury which breaks the chain of causation between the compensable injury and the employee's disability."

The case law dealing with this issue in Georgia has been somewhat back and forth, but it appears as though the common theme is that Claimants who are actively receiving benefits/ongoing treatment for the initial work injury will be able to continue receiving the benefits, even if they are subsequently injured in a non-work accident (even if the Claimant was being careless or negligent). However, if a Claimant had been deemed to have fully recovered by his ATP and at some later point re-injures the same body part that was initially injured at work, a reinstatement of benefits would be denied.

Tip: It should be noted that the law requires the Employer to prove that the "chain of causation" has been broken, as opposed to simply unilaterally suspending benefits. In other words, in the example question used in the title of this post, the Employer would have to request an official hearing and have a judge rule on the matter before suspending benefits. If your Employer has cut your benefits off based on this contention, you should absolutely contact an attorney to discuss your options.

Again, this is a highly complicated area of workers' compensation law, so it is always best to consult with an attorney to determine how best to proceed. Even if you're not in the Athens, Georgia area, please contact us and we will do everything we can to fight for your rights.

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.

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.

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? (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.

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? (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.

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.