The following information is not legal advice; it is provided for general informational purposes only. Workers’ Compensation laws can be complex and fact specific. Please consult with an attorney of your choosing about your specific circumstances.
What is workers' compensation?
Since 1920, Georgia has had in place a special system of laws to compensate workers who are injured on the job. Prior to the enactment of these laws, an employee who was injured on the job had to file a civil lawsuit against his or her employer to recover for his injuries, medical costs and lost wages. The employee had to prove that his injury arose out of the negligence of his employer. Such lawsuits were costly, time consuming and difficult to win because of the many defenses available to an employer. For example, an employer could successfully argue that the employee was aware of the risk and voluntarily assumed the risk which led to his injury. On the other hand, employers were exposed to substantial costs and damages in defending and paying for lawsuits, particularly where the employee’s injury was catastrophic, which could bankrupt a company. This created an incentive for both sides to reach what is known as the “Grand Bargain.”
This “Grand Bargain” in Workers’ Compensation did away with the concept of negligence or fault in work injuries. It does not matter if the injury to the employee resulted from the negligence of the employer or if the employee was careless. As long as the employee is injured while performing his job, and within the scope of his job, then the employee is entitled to certain benefits, such as medical care and wage replacement while unable to work. However, these benefits are neither absolute nor limitless.
Are all employers obligated to have workers’ compensation insurance?
In Georgia, every employer who has three (3) or more employees must carry workers’ compensation insurance. However, it is important to keep in mind that, in some situations, the owner of a company is counted as an employee as well, so the owner of a company could only have two (2) employees and still be subject to the Act. Failure to have workers’ compensation insurance can make a company and/or its owners personally liable for all the medical costs and benefits to which the employee is entitled. The company and/or its owners may also be subject to civil penalties of not less than $500 nor more than $5,000 per violation.
How much time do I have to report an injury?
You have 30 days in which to report an injury on the job. There is no requirement in the law to report an injury in writing, and you may do so verbally. However, unless your employer takes an action that indicates knowledge of the injury — for instance, sending you to a clinic, hospital or doctor within those 30 days — you may have a problem proving that you reported the injury verbally to your supervisor or human resources department within those 30 days. For instance, a worker may injure her back and think it is just a sprain, so she does not initially report her injury. Instead, she chooses to take a “wait and see” approach. Five weeks later, her pain increases and she decides to report her injury and ask for medical treatment. The claim may be barred.
What benefits am I entitled to?
Generally speaking, there are three benefits to which an employee is entitled: (1) medical care for the work injury; (2) income benefits to replace the wages lost while unable to work; and (3) compensation for any permanent partial impairment as a result of the injury.
What medical benefits am I entitled to?
The employee is entitled to receive all medical treatment and care for his work injury that are reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment. This includes medical services like doctors’ appointments, diagnostic testing, physical therapy, medications, surgeries, prosthetics and aids, psychological counseling nursing or attendant care if necessary, transportation to the doctor and even language interpretation if the employee is not fluent in English. If the work accident took place on or before June 30, 2013, these medical benefits are available for life. If the injury took place on or after July 1, 2013, the employee is entitled to medical benefits for up to 400 weeks from the date of injury, unless the claim is designated as catastrophic.
Can I choose the doctor that will treat me?
The employee cannot seek medical care with any doctor. The employer’s obligation to pay for the medical care is limited to treatment provided by a physician or other health care provider authorized by the employer or its insurer in advance, as in before any injury ever takes place. Employers are required by law to maintain and post in a visible place at work a panel (list) of authorized physicians with whom its employees can treat in the event of an injury. If the employer fails to post such list and explain it to the employees, only then the employee has the right to select any physician of his choosing paid for by the employer or insurer.
What if I don't like the doctor that is treating me or I am not getting better?
You have the right to switch to another doctor listed on the company panel if you are dissatisfied with your doctor . You do not need permission from your employer or the insurer or even the judge. However, this right may be exercised by you only once. Under certain circumstances, you also have the right to request a medical evaluation by any doctor of your choice at the expense of your employer or the insurer.
What if I don’t like the doctors listed on the panel, or there is no doctor for the specialty I need, or I already exercised my right to change doctors once?
The only other possible ways to change doctors are through agreement with your employer or the insurer OR by an order from an administrative law judge.
What income benefits am I entitled to?
You are entitled to lost wages, or wage replacement, while you recuperate from your injuries. However, you do not recover all of your lost wages. By law, the employer or insurer is only obligated to pay you two thirds (2/3) of the your average weekly earnings for the 13 weeks prior to your injury. You must total the wages you earned during the 13 weeks before your injury (not counting the week when you were injured) and divide by 13. This gives you your average weekly wage (“AWW”). You then have to calculate 2/3 of your AWW and that yields your weekly income benefit or “comp rate.” However, the amount of weekly income benefit is capped. For any injury taking place on or after July 1, 2016, the maximum income benefit allowed is capped at $575 per week. In other words, if you were earning $1,000 per week before your injury, the most you can recover for an injury taking place after July 1, 2016 is $575 per week. This maximum amount has changed over the years and was less in preceding years. However, your weekly income benefit amount is fixed as of the date of your work injury; it does not go up as benefits are increased by law.
Does my income benefit increase with time?
No, your income benefit is fixed as of the date of your injury and it is not increased or adjuster for inflation.
Is there a waiting period after my injury before I receive income benefits?
Your employer or the insurer have an obligation to pay income benefits once you have lost 7 consecutive days of work and it does not include payment for those first 7 days, unless you are out of work for 21 or more consecutive days, in which case you are entitled to receive income benefits for those first 7 days. For example, if you are out of work due to your injury for 10 days, then you would be entitled to recover income benefits for three days of work lost (10 minus 7), not 10 days. However, if you are out of work for 21 or more consecutive days, then you are entitled to receive income benefits for every day, including the first seven days.
So, when should I receive my first income benefit check?
If the treating doctor has placed you on a no-work status, the employer/insurer must issue the first weekly benefit check on or before the 21st day after they have knowledge of the work injury – which is normally the day that it happened. After that, the income benefits must be paid in weekly installments.
What if I am receiving my checks late?
Most insurance companies mail the checks . The post office sometimes loses or delays delivery of a check, in which case it would be difficult to hold your employer or the insurance company responsible. However, in workers’ compensation cases, Georgia has something commonly called the “mailbox rule.” If the check is mailed by the insurance company from within the State of Georgia, the envelope must be postmarked no later than the last day of the week period that is being paid. If the insurance company mails the check from outside of the State of Georgia, then the enveloped must be postmarked no later than 3 days before the last day of the week period that is being paid. If your check is late, it is important that you note the postmark in the envelope and keep it if the insurance company is not adhering to the mailbox rule. Insurance companies that make late payments are subject to a 15% penalty for the late payment.
Can my income benefits be deposited directly in my bank account?
That depends on the insurance company and your expected length of incapacity. There is no law requiring it, but some insurance companies will establish direct deposit when your injury is catastrophic or severe enough that you are expected to be out of work for many months or years. However, as a matter of practice, insurance companies do not like to establish direct deposit because it forces the adjuster to look at your file at least once a week when she has to authorize release of your income check.
How long am I entitled to receive income benefits?
You are entitled to receive income benefits for as long as your treating doctor says that you cannot work, up to a maximum of 400 weeks. If your claim is designated as catastrophic, then then you are entitled to receive income benefits for the rest of your natural life. However, there is a rebuttal presumption at age 65 that the employee would have retired anyway, which the insurer may use to attempt to end benefits.
What if my doctors says I can work a job with restrictions (light duty) but my employer does not a have a job for me?
If your employer does not have a job that accommodates the restrictions imposed by your doctor, then you will continue to receive the same weekly income benefits. However, your employer or the insurer may file form WC-104 notifying you that your right to receive income benefits will be reduced from 400 weeks to 350 weeks in 52 weeks (1 year) from when the form WC-104 is filed and that the maximum amount you are allowed to receive will be reduced from $575 to $383 per week. If you are already receiving less than $383 in weekly income benefits, then the amount would remain the same. These maximum amounts are effective for injuries taking place on or after July 1, 2016.
What is the difference between TTD and TPD income benefits?
Temporary Total Disability (“TTD”) means that you are totally disabled from working but the nature of your disability is temporary in nature. Temporary Partial Disability (“TPD”) means that you are partially disabled but the nature of your disability is temporary as well. For instance, you have knee surgery due to a work injury. Your doctor may put you on a no-work status for 30 days while you recuperate and attend physical therapy. Your disability is total (can’t work) but it is temporary in nature, since it is not expected to last the rest of your life, and you will receive TTD benefits. After 30 days, your doctor releases you to work with restrictions, such as not climbing ladders or standing for more than 2 hours. The doctor’s restrictions means you are partially disabled (since you cannot do any work that requires you to climb ladders or stand for more than 2 hours but you could do other work) but it is also temporary in nature, since the doctor may lift all restrictions after you recuperate, depending on the outcome of your surgery. During this time of restricted work, your employer may offer you a job that accommodates your restrictions, and you would be entitled to draw TPD benefits if the amount you are earning is below the average weekly wage you earned prior to your injury. If your employer does not have a restricted job for you, you will continue to receive TTD benefits but your employer may file form WC-104 to convert your benefits from TTD to TPD in 52 weeks (1 year) after the form is filed.
What are permanent partial disability benefits or "PPD"?
In addition to medical and income benefits, the third type of benefit you are entitled to receive is permanent partial disability or “PPD.” This benefit seeks to recompense an employee who has suffered a permanent in duration, but partial in quality, disability as a result of his injuries. The employee is given a percentage disability rating by his doctor based on certain impairment tables published by the American Medical Association. For instance, if an employee loses a finger, the tables may call for a 3% permanent partial disability rating to the arm as a whole. This percentage is applied to a number of weeks set by statute — in the case of an arm it is 225 weeks – and then multiplied by the weekly income benefit or “comp rate” of the employee, which yields a figure to which the employee is entitled. In theory, PPD does not compensate for the loss of the finger. It compensates the employee for his future inability to earn wages due to the injury. For this reason, an employee who earns $20 an hour will be entitled to recover twice as much for the same loss suffered by another employee who earns $10 an hour.
Can I recover for pain and suffering?
No, there is are no benefits or recovery for pain and suffering in a workers’ compensation claim.
The insurer wants to settle my case and to set up a Medicare Set-Aside account. What is that?
A Medicare Set-Aside account or MSA is used when you are eligible or it appears you will be eligible for Medicare either as a result of receiving Social Security Disability Income benefits or because you are entitled due to your age. Medicare is not supposed to pay for treatment which you have received as a result of your injury. The amount of the MSA is an estimate of how much your future medical treatment for your work injury will cost. After settlement, you must place the money for the MSA into a separate account to be used only for payment of medical treatment and related expenses arising from your work injury. Your failure to properly use this money and account for it can result in a denial of Medicare benefits for other non-work related medical treatment.
Do I have to remain in Georgia in order to get Workers' Compensation benefits in my claim?
No. You can continue to receive your weekly benefits no matter where you are living. The insurer must provide you a doctor convenient to your new residence.
Can I be fired for making a Workers' Compensation claim?
Yes, under Georgia law. Georgia is an employment at will state. In general, unless you have an employment contract or are the victim of discrimination, you can be fired for any reason. The Georgia legislature rejected a bill preventing such firing for making a claim many years ago.
Am I personally responsible for my medical bills as a result of my work injury?
Not if you have an accepted claim and if you have seen the authorized treating physician. Georgia law prohibits the medical provider from billing you for such services.
I am applying for Social Security Disability Benefits. If I get them, will they be reduced because I am receiving Georgia Workers' Compensation benefits?
Perhaps. The total of your workers’ compensation benefits and your social security disability benefits cannot exceed 80% of your average monthly or current earnings. Usually, when your workers’ compensation case is settled, the documentation of the settlement agreement can be drawn so as to recoup a large portion of this lost offset.
I think someone from the insurance company is watching me. Can they do this?
Yes. It is legal to perform surveillance. The insurance company in your case is likely to be trying to see if your restrictions are less than you and your doctor say they are or catch you lying about the extent of your injuries. Avoid doing any strenuous activity outside beyond what the doctor tells you. Even when we are in pain sometimes we extend ourselves and do things that may cause us pain because it is for a very short period of time and we have no one to help us. The insurer will try to make it look like there is nothing wrong with you. While you may be able to bend over and pick something up once, this does not mean that you can do it all day. They may make a videotape that may be very misleading. Be smart and protect your rights in your case.
Can the insurance company force me to settle my claim?
No, it cannot. And the reverse is also true: you cannot force an insurance company to settle your claim. Only when both sides reach an agreement on the terms of a settlement, the agreement is put into a Stipulation and presented to the State Board for approval. Once approved, the settlement is final and your claim can be officially closed. You will not be able to re-open your case if you change your mind after the settlement is approved by the State Board.