Recently, the Georgia Court of Appeals released a ruling that could have a major impact on your workers’ compensation claim.  For the first time the Court of Appeals (which creates precedent that must be followed by the State Board of Workers’ Compensation) ruled that private (“ex parte”) conversations between lawyers and doctors is improper.   Now, both parties must be participants in any pre-deposition discussions.  I fully agree with the Courts concerns that medical providers ought not be subjected to persuasion or coercion by lawyers.

I think that the Court of Appeals has issued a smart, common sense opinion.   Many times in the past, I would arrive at a doctor’s deposition only to find defense counsel and the doctor engaged in private conversation.   It can be enough of an uphill battle dealing with “industrial clinic” physicians who derive all of their income from insurance companies.  At least now these private conversations are definitively improper and hopefully will result in more informative and truthful, uncoached testimony.

I would also note that these new rules apply to both claimant’s lawyers and to defense counsel.  In my view, it is just as inappropriate for a claimant’s lawyer to lobby or coach a doctor as a defense lawyer.

If you experience severe stress at work, you may be experiencing symptoms of depression, anxiety or even PTSD.  Perhaps your work environment is extremely hostile, or perhaps you were physically attacked or injured at work and are having a difficult time with the psychological aspects of recovery.

In this video I explain that psychological symptoms are compensable under Georgia workers’ compensation law only if there is an associated physical injury.  Examples of physical injuries that give rise to mental health problems that must be treated by an employer paid psychologist or counselor include:

• post traumatic stress symptoms after suffering a physical injury
• after-effects of violence at the work setting
• psychological symptoms that arise from covered medical treatment

If you think that you may be entitled to mental health treatment as a result of a work injury, please call me at 770-351-0801.

Georgia’s workers’ compensation law allows employers to deny payment on work injury claims if the employee was engaged in “horseplay” at the time of the accident?

What exactly is “horseplay?”

Georgia law is somewhat vague about this but essentially it means that you were engaged in some activity outside the scope of your employment, even though you were on the clock at the time of your accident.

Here are some examples of activities that courts in Georgia and elsewhere have defined as horseplay:

• a finger wrestling match
• wrestling or mock fighting
• blowing spitballs
• setting up a practical joke
• showing off with feats of strength or endurance
• playing tricks on new workers
• playing with the controls of industrial equipment
• playing catch

Appeals courts in Georgia consider horseplay issues on a case by case basis.   Since it can take a year or longer to put your case before an appeals court, many “horseplay” cases settle for a reduced sum using a “no-liability” stipulation.

In real life, drawing a line between casual conduct at the work site and horseplay can be difficult.  If you have been injured on the job and you are concerned that your employer may try to raise a horseplay defense, I would advise you to say as little as possible about the circumstances of your accident to anyone (co-workers, physicians, supervisors) and to consult with a workers’ compensation lawyer as soon as possible.

What is an industrial or occupational disease?

Any chronic condition or sickness that occurs as a result of your occupation or work activity is referred to as an industrial or occupational disease. It is one of the facets of occupational health and safety and is usually identified when it occurs more prevalently in a specific group of employees rather than in the general population. Industrial or occupational diseases do not include hazards that are traumatic in nature, such as when a construction worker falls from the upper story of a structure.

In most jurisdictions, where worker’s compensation laws are concerned, it is often the case that specific diseases result from the worker being in a particular work environment. Therefore, the burden of proof falls on the employer or their insurance company to prove that the condition resulted from other causes and not the job. Some of the more common industrial or occupational diseases include:

• Lung diseases – e.g. asbestosis or occupational asthma resulting from inhalation
• Skin diseases – e.g. eczema or skin cancer resulting from chemical exposure or having wet hands over long periods of time
• Other diseases – e.g. carpal tunnel or lead poisoning

Regardless of the type of industrial or occupational disease you succumb to, you will most likely be entitled to worker’s compensation benefits.

Other industrial/occupational disease concerns

In recent years, there have been numerous worker’s compensation cases arising from more specific industrial/occupational diseases. The following are now becoming more prevalent in the workplace:

Asbestosis and Mesothelioma – both of these concern the inhalation of asbestos fibers and particles over prolonged periods of time. Asbestosis is medical condition that is a chronic fibrotic and inflammatory lung condition. It is classified therefore classified as an industrial/occupational lung disease. Prolonged exposure to asbestos evolves into very serious diseases such as lung cancer and/or mesothelioma.

Mesothelioma is another industrial/occupational lung disease and a rare type of lung cancer and develops from many of the internal organs’ protective linings. It is typically caused by prolonged exposure to asbestos but is most commonly found in:

• The internal chest wall and outer lung lining (pleura)
• The abdominal cavity lining (peritoneum)
• The sac surrounding the heart (pericardium)

Immune system damage – typically occurs as a result of being exposed to toxins. A primary example of this would be lead or mercury poisoning.

RSI’s or Repetitive Strain Injuries – also referred to as repetitive motion or repetitive stress injuries, these are typically injuries to the musculoskeletal and nervous systems. They can be caused by:

• forceful exertions
• mechanical compression
• repetitive tasks
• sustained awkward positions
• vibrations

Here at Ginsberg Law Offices, we handle workers’ comp claims arising from occupational or industrial diseases. If you suffer from such a condition due to your job, we welcome you to contact us by filling out the Free Case Review form found on this website.

Basic worker’s comp benefits

Whenever you are injured on the job, you are entitled to receive worker’s compensation benefits. The value of these benefits will usually depend on the amount of money you were earning at the time the injury occurred as well as the amount of permanent damage that has been done to the wage earning capacity of the employee. The key differences between worker’s compensation and personal injury cases are that you cannot collect for pain and suffering with worker’s comp cases, nor can you sue your employer.

As mentioned, the recovery is based on lost wage earning potential, and the worker’s compensation attorney’s role in the matter is to ensure that every possible recovery element is taken into consideration. Worker’s compensation cash benefits are typically classified into 3 categories:

• Permanent Partial Disability or PPD
• Total Partial Disability or TPD
• Temporary Total Disability or TTD

Additionally, you will be entitled to medical care and treatment at your employer’s expense. These benefits are typically based on the employee’s average weekly wage or AWW as it is referred to more commonly. As we have already discussed TTD benefits on this blog, today we want to focus on PPD and TPD benefits.

What are the differences between the two?

PPD benefits are not based on your earning capacity but rather on a formula regarding the percentage of impairment that your injury has resulted in. This is determined by:

• the percentage of impairment the injury has caused (not wage earning capacity)
• the part of your body that has been injured and impaired
• the rate of your compensation

Even if you have not lost any wages or missed any workdays, you may still be entitled to PPD benefits. However, if you have been receiving TPD or TTD benefits, you will not start getting PPD benefits until either of the other two has stopped being paid.

On the other hand, TPD benefits apply to a situation where you have not been totally disabled and can still work, but your earning capacity has been impaired. In other words, if you can no longer earn the wages you were receiving before the injury occurred, you will most likely be entitled to TPD benefits. These benefits will be equal to 2/3 of the difference between what you were earning before and then after the injury with the maximum benefit being $334 per week. Additionally, the longest period of time that you can receive TPD benefits is 350 weeks after the injury.

What is the Georgia Worker’s Compensation Act?

The Worker’s Compensation Act of Georgia provides immediate income benefits and medical care for any employee who is injured on the job anywhere in the state. Additionally, it fixes the amount of those benefits that an employer is responsible for paying. Originally adopted in 1920, it is known as the Official Code of Georgia Annotated, Title 34, Chapter 9. However, the historical origins of Workers’ Compensation legislation in the US are worth mentioning here.

The passing of the Georgia Workers’ Compensation Act resulted from not only a national movement but an international one as well. The first workers’ compensation system was developed in Germany in 1884, and the UK followed suit in 1897. In America, it stemmed from the Progressive Movement and was established in Georgia as a result of the US becoming more industrialized from the late 19th to early 20th centuries. Unfortunately, under the original system, most workers’ comp claims would fail due to too many legal obstacles encountered in the process. Thankfully things have changed since the early days, and the workers’ comp system in Georgia is set up with the employee in mind.

The Georgia State Board

You will notice when you read the different articles and blogs at our workers’ comp attorney website that we oftentimes refer to the Georgia State Board of Workers’ Compensation. This is because we feel it is an invaluable and useful resource. The importance of the state board is that it functions as the legal system where workers’ compensation claims in the state of Georgia are concerned. The Georgia state legislature created the state board and employs a number of different forms which you oftentimes see in either the Georgia State courts or Georgia Superior court.

Despite the fact that the language at the Georgia State Board’s website is geared more towards attorneys, employers, and insurance companies rather than laypeople, it contains some extremely valuable information that you could benefit from. Should you visit their website, we recommend that you look at the FAQ section they have posted there and composed for the injured employee’s benefit. Although there is a section there for the employer as well, the injured employee can benefit from the information there as well.

Additionally, it is a good idea that you go through the section that lists and discusses the different forms involved with workers’ compensation claims and proceedings. These are the only acceptable and official forms that attorneys, employers, and insurance companies must use where any workers’ compensation claims are concerned. If you need further assistance or have any questions, please contact us by filling out the Free Case Review form found on this website.

A difference in the two laws

The primary differences between Workers’ Comp and Personal Injury lies within the state laws associated with each. Workers’ Compensation laws apply to those employees who have incurred on-the-job injuries. On the other hand, Personal Injury laws as well as wrongful death laws apply to anyone who is injured as a result of another’s actions or inactions. However, there are other key differences in the different sets of laws.

For instance, any injured employee is entitled to Workers’ Comp benefits regardless of whom or what was responsible for the injury. Where Personal Injury is the issue, in order to be awarded “damages” in such a case, the person who is injured has to prove that certain elements caused the injury. These include:

• That the injury resulted from an intentional act
• That the injury resulted from the negligence of another
• That either of the above caused the damages/personal injury

Additionally, they must also correlate this with the amount of damages being asked for as a means for settlement for the injuries incurred. In workers’ comp, on the other hand, as long as you were injured on the job, you don’t have to worry about proving what caused the injury or whose fault it is.

Other key differences

Another key factor that you need to be aware of where the differences between Worker’s Comp and Personal Injury cases are concerned is that state Worker’s Compensation laws prohibit the injured employee from suing their employer. This is because it is known as a “no-fault” system, which means that when you are injured at your place of work, you are entitled to Worker’s Compensation benefits regardless of fault. It could be your own fault, your bosses fault, or the machine’s fault; whatever it is, you are entitled to benefits.

Conversely, the only way that you can receive be awarded damages in a Personal Injury case is to sue the responsible party and/or their insurer, depending on how the injury resulted. So Worker’s Compensation is the injured employee’s exclusive remedy for the injury incurred. However, if a fellow employee was responsible for your injuries at work, you can implement a Personal Injury lawsuit against them as well. This is known as a third-party liability claim.

Finally, there are certain limitations to Worker’s Compensation benefits in that you are compensated for disability payments, lost income, medical expenses, and retaining your benefits. On the other hand, personal injury settlements can be rather unlimited depending on the nature of the injury.

The need for an experienced attorney

In either of the above scenarios, the best course of action you can take from the beginning is to consult with an experienced Personal Injury or Worker’s Compensation attorney. The right attorney can help you every step of the way in either type of case and will strive to see that you are awarded the benefits or the damages that you deserve and need. Here at Ginsberg Law Offices, we handle both personal injury and workers’ comp claims, so contact us if you have questions about either situation.

How much is your Worker’s Comp case worth?

As experienced and qualified Worker’s Compensation attorneys, we are frequently asked two very important questions – namely, “what is the value of my case?” and “when can I expect a settlement?” Truthfully, these are difficult questions to answer without having had an opportunity explore the client’s file and all of the medical records contained therein. There are so many different factors involved in a workers’ comp case that there is no one answer to these questions.

If the Worker’s Compensation attorney that you consult with begins to throw dates and figures out on the table and is not up front with you about the factors involved, they are giving you the wrong idea. As an example of what we mean, let’s assume that you needed to take your vehicle to a repair mechanic for a weird problem. Before ever driving it or testing it, they diagnosed what the issue was and gave you a repair estimate without ever getting behind the wheel and taking it for a test drive or even running the slightest diagnostics. Would you accept that?

What we look for when opening your file

The first thing we look at is medical evidence regarding the injury. In most cases, though, the medical documentation our clients bring to us has not been completed. Oftentimes, there has been no significant testing performed in order to reveal what the injury entails, such as a CT scan, an MRI, or even x-rays. As your attorney, we help get the medical records you need as well as the treatment and appropriate testing. Once we have all appropriate medical records and treatment records, we start developing estimates regarding future medical care costs. Tests regarding your injury are very important; test results like MRI results and xrays are seen by Judges as objective evidence regarding your case.

For instance, a generalized pain syndrome will have far less of an impact on your Worker’s Compensation case than actual evidence of a broken bone or a disk that is herniated. This is especially true where impacting the value of your settlement is concerned. We also look for who the authorized treating physician is and whether or not they are more conservative when evaluating your case. You need to realize that if the treating physician is prone to releasing you and letting you return to the job without any restrictions, that this could impact the value of your settlement.

A third thing we look for is how your case is being handled by the employer and/or its insurer. Have you received the benefits you deserve thus far, or have you been taken advantage of? As your attorney, we make sure you get every cent and every bit of medical treatment that you are entitled to under workers’ comp. What you are receiving also obviously plays a role in what we determine to be a fair settlement value.

Finally, what most claimants fail to realize is the severity of their injuries. You might think that the intense pain you are feeling in your back is associated with the ache you are experiencing in you heel. However, in the future, when that heel pain results in the difficulty or the inability to walk normally, it will have more of a long-range impact on you. What you need to realize is that you need an experienced Worker’s Compensation attorney who has seen cases like yours before and can help you determine just what is wrong with you. We use our expertise to help you realize what your injuries mean, and we use this knowledge to assist you where proposing a settlement for you injuries is concerned.

A word about the AMA

The AMA or American Medical Association was originally founded in the mid-1800s and was incorporated 50 years later in 1897. It is the United States’ largest association of medical students as well as physicians. Approximately 22% of all the members of these two groups belong to the AMA despite a declining membership in recent years. The mission of the organization is to promote the art and the science of medical treatment and medicine as well as being a means of:

• Advancing the interests of both physicians and their patients
• Lobbying for favorable legislation for these physicians and their patients
• Raising money for medical education
• Promoting the public’s health

Additionally, $1 million is provided annually as tuition assistance to those students who are financially needy.

The importance of the AMA’s disability guidelines

As experienced Workers’ Compensation attorneys, we are oftentimes asked how we know when a case is ready to proceed to the settlement phase. The judgment is comprised of a number of important factors.  The AMA’s disability guidelines are viewed as a physician’s required framework for assigning disability ratings to Workers’ Comp claimants.

The guidelines were designed and developed to assist physicians in the objective evaluation of the injuries and limitations resulting from those injuries of the claimant. There is a wide array of body systems that the AMA guidelines currently address including the following:

• Cardiovascular system
• Immune system
• Musculoskeletal system

These guidelines are used in Workers’ Compensation cases in the state of Georgia. A physician will assign a disability rating, and this disability rating will play a role in the workers’ comp case. It will sometimes effect the amount of benefits received, and it will sometimes influence the time of settlement. We often try to settle cases once a disability rating has been assigned and your doctor has said that you have reached “maximum medical improvement.”

Applications in a Workers’ Comp case

There are certain instances when we will challenge a disability rating’s validity if we feel that the physician who has conducted the evaluation has used too much subjectivity in the evaluating process. It follows suit that the more serious the injury to the claimant is and uncertainty regarding the future of the claimant, the higher that disability is going to be. Additionally, once that claimant is approaching what is referred to as the “maximum medical improvement,” this is the point in time when it may be wise to settle your workers’ comp case.

Once your physician begins to discuss issuing a disability rating, this is the point in time when having an experienced Worker’s Compensation attorney on your side can benefit you the most. For more information on how we can assist you with your Worker’s Comp claim and case, or to answer any further questions, please feel free to contact us.

What are catastrophic injuries?

Depending on the nature of your on-the-job injury, you are entitled to certain benefits that Worker’s Compensation insurance provides for you as the injured employee. Typically, on-the-job injuries are categorized as either being “catastrophic” or “non-catastrophic.” Here are a few accepted categories of catastrophic injuries:

• Severe paralysis
• Severe head injuries
• Severe burns
• Blindness
• Any type of injury which prevents you from performing your normal job responsibilities or some other job with another employer

In the state of Georgia, you are usually compensated at a rate of 2/3 of your average weekly wage up to a $500 per week maximum for the entire period of time that you are not able to perform your job. Additionally, Worker’s Compensation Insurance ensures that you receive ongoing medical care if that is necessary as well as any rehabilitative and vocational benefits.

Evaluating the nature of a catastrophic injury claim

As experienced Worker’s Compensation attorneys, we have developed a specific checklist in order to evaluate what your catastrophic injury claim is worth. Here are some key factors that we take into consideration:

• How much medical attention will be required in the future?
• Will you need corrective surgery in the future?
• Are modifications to your home going to be necessary in order to accommodate you?
• Will you need to modify your vehicle or perhaps purchase a new one that will accommodate your needs?
• Are you going to need in-home health care?
• What does the “Medicare Set Aside” provide you with?
• As far as any post-settlement living expenses are concerned, what will Social Security provide you with?
• Would it be in your best interests to receive a structured settlement?
• Is settling in the beginning the best idea? In some cases, continuing to receive Worker’s Compensation benefits for months or even years is the best course of action.

There are other factors that we consider as well, but this list just gives you an idea of all the things we as your attorneys think about when you are trying to settle your catastrophic injury claim. Our goal is to ensure that you receive the maximum settlement possible given your condition and all of its ramifications.