Georgia Law Blog

Currently, an injured worker can receive up to $450.00 per week in workers' compensation disability checks.  Most injured workers and attorneys who do not practice workers' compensation law do not know that this amount can be reduced to only $300.00 per week automatically, even if the injured worker is still disabled and cannot work. Georgia workers' compensation law also says that an injured worker can collect weekly benefits for up to 400 weeks from the date they were injured in non-catastrophic cases, right?  Wrong again.  Again, those unfamiliar with this area of law do not know that maximum time to collect weekly income benefits can automatically be reduced from 400 weeks to 350 weeks from the date an injured worker got hurt. 

The basis for all of this is O.C.G.A 34-9-104.  This law states the following: 

O.C.G.A. 34-9-104(2)  When an injury is not catastrophic, as defined in subsection (g) of Code Section 34-9-200.1, and the employee is not working, the board shall determine that a change in condition for the better has occurred and the employee shall be entitled to the payment of benefits for partial disability in accordance with Code Section 34-9-262 if it is determined that the employee has been capable of performing work with limitations or restrictions for 52 consecutive weeks. Within 60 days of the employee's release to return to work with restrictions or limitations, the employer shall provide notice to the employee on a form provided by the board that will inform the employee that he or she has been released to work with limitations or restrictions, will include an explanation of the limitations or restrictions, and will inform the employee of the general terms of this Code section. In no event shall an employee be eligible for more than 78 aggregate weeks of benefits for total disability while such employee is capable of performing work with limitations or restrictions (remainder omitted).

Here is an example: An injured workers has been collecting $400.00 per week since his injury.  The worker had an on the job injury on January 1, 2004.  He was released to light duty work on January 1, 2005 by the workers' compensation doctor.  Shortly after being released to light duty, the insurance company sends him and his attorney a Form WC-104 which tells him that they plan to reduce is pay from $400.00 per week to $300.00 per week 52 weeks later which is January 1, 2006.  On January 1, 2006 the insurance company will reduce his weekly checks from $400.00 to $300.00 per week even if the injured worker is not any better.  Almost equally as bad is the fact that injured worker loses 50 weeks, or almost one year, of eligibility for income benefits. Once again, this has nothing to do with how badly the person is injured - - it is an automatic reduction based on a bad law. 

There is hope, though.  An attorney experienced in this area can find one or several flaws with the notice (Form WC-104) that the employer / insurance company sends out.  Sometimes, the Employer does not file the form within 60 days from the date of light duty.  Other times, the form was not filed with the State Board of Workers' Compensation.  The best advice is to consult with an experienced Georgia workers' compensation attorney when this issue arises as there are other pitfalls into which insurance companies fall. 

I recently ran across an interesting article in the Atlanta Business Chronicle called NASI Study: Georgia Workers' Compensation Payments Up.  Although the article, written in 2004 is somewhat dated, it paints a picture about the scope of Georgia's workers' compensation system.

In 2002, for example, workers' compensation payments were to be $1.08 billion.  Interestingly, payments for medical care and cash payments were close:  about $517 million was paid for medical care and about $566 million was paid in cash payments. 

My observations are two-fold.  First, workers' compensation payments in Georgia have dropped over the past 5 years, at least according to the State Board of Workers' Compensation Annual Report which was discussed by me in a previous post.  Second, I cannot find a newer report by the group called the National Academy of Social Insurance (NASI).  It would be interesting to see the trends for payments in the past few years according to this organization.   

The Georgia Court of Appeals announced its decision in the case of Fallin v. Merritt Maintenance & Welding, Inc. on January 19, 2007.  This case involves a change in condition of the injured worker like so many recent cases from Georgia's appellate courts.  My opinion is that we will continue to see more and more change in condition cases as the defense bar, over the past few years, has waged a war using the change in condition theory as its primary weapon.  Typically, this involves insurance company lawyers filing hearing requests (many of them frivolous, I might add) which assert a change in condition for the better.

The Fallin case is different, though.  Although there are two holdings in this case, my opinion is that this case is a victory for the injured worker. Now, it is appears clear that when a notice to controvert is filed that does not pay all benefits currently due, including penalties, it is an invalid controvert. 

In this case, the injured worker was hurt in 1998 and sought additional weekly benefits some 7 years later.  This case stands for at least 2 propositions.  First, "An employer's failure to pay all benefits currently due before filing a notice to controvert under O.C.G.A. 34-9-221(h) renders that notice to controvert invalid."  In Fallin the term "all benefits due" includes penalties for late payments.  This is good for the injured employee.

Second, this case seems to say that an employer can still assert a change in condition under  O.C.G.A. 34-9-221(i) even if it files an invalid controvert (i.e. one that, as in Fallin, is filed without all benefits currently due being paid).  Obviously, this part of the ruling is a bad for the injured worker.

Overall, this is a good case for employees who are hurt in an on-the-job accident.  If the employer does not follow the law when filing a controvert by paying all benefits and penalties owed, the controvert is invalid.  While an employer may still fight the case based-upon a change in condition theory, the burden of proof would then rest on the employer.  Also, attorneys' fees could be assessed more often against employers and their workers' compensation insurers for not filing a timely controvert.  This is due to the fact that filing an invalid controvert seems to now be a nullity and, accordingly, tantamount to filing nothing at all.  Only time will tell, however, as this area of Georgia workers' compensation law continues to evolve. 

In a busy workers' compensation practice, it is essential to use good technology for managing cases.  We have used Amicus Attorney for several years and have been very pleased.  In fact, our office just upgraded to the newest version which is called Amicus 7. It is highly customizable and works well with our current case load and work flow.

I have encouraged other lawyers to heavily incorporate office technology into their respective practices.  I believe in technology so much, that I have helped about a dozen other attorneys implement technology in their offices in one fashion or another.  Technology in a law office means much more than just having computers.  It is a way of doing things (a business model) that increases efficiency and helps accomplish tasks in less time than ever before.

I welcome other attorneys with technology questions to call me anytime with questions.  I may not be able to help with everything, but I can sure point you in the right direction. 

As part of my Georgia Workers' Compensation Law Blog, I will provide case law updates on all new workers' compensation cases from the Georgia Court of Appeals & Georgia Supreme Court.  As of today (January 18, 2007), there have been no new cases in 2007.  As I have previously stated, my goal is two-fold.  First, I want to provide information for injured workers, their families, and the general public about Georgia Workers' Compensation.  Second, I want to provide valuable information to attorneys, especially non-workers' compensation practitioners, about Georgia workers' compensation law.  This post is more directed toward the attorneys who read my blog.

In this posting, I will highlight a recent case which I think is quirky. I also think the importance of this case will become more apparent as time passes.  My gut feeling is that this case will have negative implications for the injured worker in years to come. 

The Footstar case can be found here:  Footstar, Inc. v. Liberty Mutual Ins. Co.

Statutes of Limitation in Georigia workers' compensation cases are admittedly tricky.  Although this case grew out of fight between two insurance companies, it affects injured workers adversely.  Generally, there is a two year Statute of Limitations in a change of condition case.  In its most basic form, a change of condition case means what it says: an injured worker's condition changes for the better or worse.  In many cases, an injured worker gets better, the weekly benefits stop, and later gets worse and again seeks weekly benefits.  In these cases, the injured worker generally has a two-year Statute of Limitations in which to file a claim for additional weekly benefits. 

The question that naturally arises is as follows - - what happens if the injured worker never receives weekly income benefit checks?  What is the Statute of Limitations in these cases?  Does it matter if a judge issues an award in favor of the Claimant allowing medical care but awards no income benefits?  In Georgia, as in many states, there are "Medical Only" cases. These are cases in which the only benefit supplied by the insurance company is medical care. 

Perhaps the biggest problem this case presents is that it leaves more questions unanswered than answered.  In my opinion, it also opened a huge can of worms for insurers to hang their hats as the rights of injured workers are further depleted.

As an interesting side-note, I have a case some years back before the same Administrative Law Judge.  In this case, his ruling was similar to the Footstar case in that he denied my client's application for income benefits, but issued an award in favor of my client for medical care.  My case was settled after I filed an appeal, but I often wondered how it might have turned-out if it were not settled.

The Check's In The Mail? Where is my workers' compensation check? One of the most common complaints I hear from clients as a Georgia workers' compensation attorney is that their weekly checks are, well, not coming weekly.  In some cases, they never come at all.  Any way you look at it, not sending checks as required is a violation of the law. It's really that simple, yet insurance companies always have explanations for not sending out checks in a timely fashion.  I have heard the gambit of excuses ranging from computer glitches, adjusters on vacation,  new adjusters assigned to the case, the check was sent, "system" changes, and other assorted excuses.

THE LAW - - It's really pretty straight forward:

O.C.G.A. 34-9-221(b) The first payment of income benefits shall become due on the twenty-first day after the employer has knowledge of the injury or death, on which day all income benefits then due shall be paid. Thereafter, income benefits shall be due and payable in weekly installments; provided, however, that the board may, in its discretion, authorize payments to be made in different installments if it determines that this would be beneficial to all parties concerned. Such weekly payments shall be considered to be paid when due when mailed from within the State of Georgia to the address specified by the employee or to the address of record according to the board. Such weekly payments shall be considered to be paid when due when mailed from outside the State of Georgia no later than three days prior to the due date to the address specified by the employee or the address of record according to the board.  Such weekly payments shall be considered to be paid when due at the time they are made by electronic funds transfer to an account specified by the employee.

REALITY: Could you imagine getting pulled over for speeding and blaming your cruise control device?  Of course not.  What if the penalty for speeding were so small that it did not make you not speeding?  That is precisely the problem with workers' compensation checks not being sent on time.

The penalty for not sending checks on time is a 15% penalty in Georgia.  I have spoken to attorneys in other states with harsher penalties and wonder if Georgia law should impose penalties that actually encourage compliance with the law.  While is it possible to request civil penalties and attorneys' fees, they are often not granted.  Furthermore, they do not help the Claimant as the civil penalties are to be paid to the State Board of Workers' Compensation and the attorneys' fees are paid to the attorney for having to bring a motion.

I wonder how often this would be an issue if the penalty were 50% or 75% instead of a mere 15% penalty?  I wonder quite often how I could be spending more time on important issues to advance my client's case.

My advice to injured workers is that they or their attorney should have a plan of action to address this problem.  For me, I give my clients a letter and suggest they keep a copy of all checks, pay stubs, and envelopes as evidence. I have standard letters I send routinely when checks are behind.  A word to the wise: insurance companies are quick to send out copies of pay-out screens showing the date and amount of checks allegedly sent.  What I have found is that when I receive the copies of checks, pay stubs, and envelopes, they tell a much different story. 

    When clients come to see me, I give them a copy of the State Board of Workers' Compensation Employee Handbook.  I give a copy of this to everybody I see for the first time in my office.  It is filled with good information and answers to many questions.  Although it cannot replace a workers' compensation attorney, it goes a long way in addressing an injured workers' primary concerns. 
     This is a handy guide to help injured workers understand basic information about their rights and responsibilities in the workers' compensation system.  I invite everybody to read it for a general overview.

    You cannot build a house without a strong foundation, or so the saying goes.  As I explain to my clients, an injured worker is entitled to four types of benefits in a workers' compensation case under Georgia law.  In a very broad sense, these are the basics to which an injured worker is entitled.
    First, an injured worker is entitled to income benefits.  These weekly benefits are either temporary total disability (TTD) benefits or temporary partial disability benefits (TPD).  The only difference between the two is that an injured worker gets TTD while completely out of work.  If the injured worker returns to work and earns less money because of the injury, the worker gets TPD benefits.  Currently, the maximum weekly TTD benefit is $450.00 per week.  In most cases, this is figured by calculated by averaging the injured worker's weekly pay over the 13 week period prior to the injury.  This figure, called the Average Weekly Wage, is multiplied by 2/3 to arrive at the Compensation Rate.  Example: an injured worker earned, on average, $600.00 each work over the 13 week period before the on-the-job injury.  They would get workers' compensation in the amount of $400.00 weekly, assuming they have a valid claim.
     The second type of benefit an injured worker can get is medical benefits.  The law says an injured worker is entitled to medical benefits that will effect a cure, give relief, or return the worker to suitable employment.  Technically, an injured worker is entitled to lifetime medical benefits.  The most traditional benefits include doctor care and hospitalization.  Medical benefits can also range from prescriptions to medical devices.  Medical benefits can even include paying somebody, even a fried or family member, to help care for an injured worker, typically after a surgery.  This is referred to as attendant care.  Medical benefits can even include payment for a gardener to do yard work if the doctor is willing to order it on behalf of the injured worker.
     The third type of benefit available is payment based on a  permanent partial disability (PPD) rating.  Typically, a doctor will assign a percentage rating to an injured worker based on a number of factors.  The ratings are supposed to be based upon the American Medical Association Guide to the Evaluation of Permanent Impairment, 5th Edition.  In a case I worked on earlier today, my client was assigned a 25% whole body Permanent Partial Disability rating.  This rating is used to compute the amount an injured worker will receive, based on a formula.  An important point is that the percentage ratings can vary among different doctors.  I have typically seen lower percentage ratings from doctors who are known to be friendly to the insurance companies (imagine that!). 
     Rehabilitation benefits are the fourth type of benefits.  Unfortunately, the law only allows these benefits for the most seriously injured workers who have catastrophic injuries.  Rehabilitation benefits can include  home modifications,  educational programs, and special vehicle modifications.
    Stay tuned!  In the future, I plan to post more detailed information about each of the above benefits.  I advise all clients with valid cases to hire a workers' compensation attorney (whether it is me or somebody else)  due to the complexity of workers' compensation law.  The waters of Georgia workers' compensation are choppy and, often, unpredictable.