Under Georgia law, at least, workers’ compensation is the exclusive remedy for work injuries.   An employee cannot sue his employer for pain and suffering damages.

While the concussion litigation is just beginning, we can expect the NFL to argue that players should not be able to pursue civil damages outside of the workers’ compensation system.  The players will argue that they should not be limited to workers’ compensation remedies because the NFL withheld information about concussions and because of exclusions set out in the collective bargaining agreement between the NFL and the NFL Players Association.

The NFL has won one round in a related legal matter.

Recently, the Atlanta Falcons and the NFL sued the NFL Players Association to prevent injured players from filing workers’ compensation cases in California, where the available benefits are more generous than those provided for under Georgia law.   California law allows claims if the player played at least one game in the state.

The case went to arbitration and the Falcons and NFL won – Falcons players who assert injuries that were incurred while the player was under contract with the Falcons must be filed with the Georgia State Board of Workers’ Compensation.

Over the next few months, we will learn if the traumatic brain injuries suffered by NFL players will be considered as something other than a workplace injury thus making the players eligible for negligence damages.

In any case, your average weekly wage will be less than your actual weekly wage, and because you are out with an injury, you will, presumably, not be able to work at any second job or earn overtime.

If you are paying child support, that payment was most likely calculated based on your actual earnings over some period of time.  Now that you are earning less, what happens?

If you do not take any action, nothing will happen.  There is no automatic adjustment to your child support obligations simply because you are injured and claiming workers’ compensation.

Instead, you need to take action if it appears that you will be receiving a reduced income under workers’ comp, or worse, if your employer is challenging your claim and you are receiving nothing.

If you have a lawyer who has represented you in a child support case, call that lawyer.  If you do not have a lawyer, you will need to deal directly with the custodial parent or with child support enforcement.   You may be able to arrange for a temporary reduction in your child support obligations and agree to repay the reduced amount at the time of settlement.

If you do nothing, you will find yourself with a delinquency in your child support payments.  Superior Court judges in Georgia will not hesitate to incarcerate you if your delinquency gets too large or if the custodial parent or child support enforcement office take an aggressive approach towards collection.  Incarceration will greatly reduce the settlement value of your case because your medical treatment will be interrupted and because you cannot argue that you are suffering an economic loss due to your injury.

I recently read about a case in North Carolina, however, that might support a re-evaluation of the “no coverage for ingress or egress from work” rule.  Let me emphasize that this case is not a Georgia case but the facts reflect changes in technology that might expand the notion of going to and from work.  You can learn more about the James A. Hunt v. North Carolina Industrial Commission by clicking on the link.

The North Carolina case arose in 2009 when a middle school principal was shot in the face and hand while driving to work and talking on a cellphone to a school colleague.

The North Carlina Industrial Commission (equivalent to Georgia’s State Board of Workers’ Compensation) granted benefits.  The school board appealed but the award was upheld by the North Carolina Court of Appeals.  The Appeals Court noted the following in support of its decision:the principal’s contract required him to be “on call” 24 hours per day

• at the time he was injured, he was talking on an employer provided cell phone about the employer’s business
• his employment contract included a travel allowance
• the principal had previously received threats from teachers he had disciplined and from parents of students he had disciplined

This case is a good example of how creative lawyering can help courts adapt statutes to current technology.  I suspect that when the North Carolina statute was written barring compensation for an employee’s coming and going, cell phones were not widely available.  How many of us “work” in the car making and receiving phone calls and (hopefully as passengers) reading texts.

At the very least, now there is an argument that arriving at work does not necessarily mean setting foot in your company’s work site.

If you return to work without a WC-240 and cannot perform the job tasks, your employer is not obligated to restart your TTD benefits.  If you try to return to work at a job within the WC-240 restrictions and cannot perform that job your TTD benefits will resume automatically (although the employer can later challenge you on the medical issue).

I recently ran across an interesting twist on this return to work issue.  The case arose in Arkansas which apparently has similar rules to Georgia about return to work issues.  In the Tyson Poultry vs. Francisco Narvaiz case, Mr. Narvaiz injured his left shoulder and was out on TTD.  His condition improved and he was released to light duty work.  While working light duty he got into a verbal altercation with his supervisor and called her a vulgar name that I will not repeat, and Tyson Poultry fired him but refused to reinstate his TTD.  Tyson argued that Narvaiz’ termination was equivalent to a refusal to work and thus should relieve them of their obligation to pay TTD benefits.

The Arkansas workers compensation commission (equivalent to Georgia’s State Board) ruled in favor of Narvaiz, reasoning that the termination was Tyson’s decision and not a voluntary refusal by the employee.  The Arkansas appeals court reversed and ruled in favor of Tyson, but the Arkansas Supreme Court reversed and found in favor of Narvaiz and accepting the reasoning of the commission.

While I think that the Georgia State Board would rule in a similar fashion, I do think it is wise for an employee who is returned to work with a WC-240 to light or full duty make every effort to avoid situations where he might be fired for misconduct.  I can easily see a scenario where the employer would argue that the employee intentionally acted rude in order to get fired – in such a situation the State Board might very well find that intentional actions by an employee to get terminated from a WC-240 described job is equivalent to refusing to perform that job.

I therefore counsel my clients to be on their best behavior when attempting to return to work and avoid responding to sarcastic comments from supervisors.

Generally the best time to settle your case is when significant uncertainty remains regarding your future medical and lost wage eligibility.  Remember – insurance companies are in the business of risk management.  If we can show them that your future medical costs could soar into the tens of thousand and that  your return to full duty work could be far into the future, they will be more likely to offer more money to eliminate that risk.

I tell my clients that identifying that “sweet spot” is more art than science.  Sometimes a single line in a medical record, or a brief comment from my client will tell me that we are entering the zone where my client’s medical condition is stabilizing but enough unknowns remain for me to put forth a settlement demand that will result in a fair and generous settlement.

If you did not realize this already, understand that privacy in the United States is pretty much dead.  If you participate in social media like:

• Facebook
• My Space
• Yelp
• Tumblr
• Wordress (blogging)
• Blogger
• Pinterest
• YouTube
• Twitter
• and many more

information about your life can be available to anyone who is looking.  And you can bet that insurance adjusters and insurance defense lawyers are looking.   While private eye surveillance is still used, insurance defense adjusters also run searches for you on various social media platforms.  If they see you running, jumping, lifting or doing anything inconsistent with your claimed injury, they will use that video, photograph or post as grounds to cut off your benefits.

A colleague of mine tells the story of a client of his who decided to video her son’s high school wrestling match and thereafter uploaded to YouTube.  At one point the video shows the claimant climbing bleachers, then jumping  up and down to cheer her son.  Unfortunately this woman was asserting a job injury to her hips and lower back that she claimed was disabling.  When confronted with the video, she insisted that the wrestling match was a one-time event and that she ended up in bed for a week thereafter.  The workers’ compensation judge did not accept this argument and upheld the insurance company’s termination of benefits.  A case that could have settled for $50,000 to $75,000 ended up settling for nuisance value of less than $5,000.

Don’t let this happen to you.  If you are pursuing Georgia workers’ compensation benefits, close or suspend your social media activities until your case is over.

The problem, of course, is that delays in needed tests, or delays in needed treatment can result in permanent injury to you.  Further, if a panel doctor returns you to work and you are unable to perform your duties, you are likely to be fired putting you in a difficult financial situation and psychologically deterring you from pursuing your rightful benefits.

In this video I discuss a case where the authorized doctor flat out ignored his own physical therapist’s conclusions about my client’s very limited use of her arms, and issued a full duty return to work.  I won’t let the insurer get away with this, of course, but I wanted you to see how broken the workers’ compensation medical system has become.  I’d be willing to bet that this doctor knows that he was not living up to his oath to offer full and complete treatment to his patients, but his interest in making money and seeing those referrals seems to override his conscience.

the insurance company has 21 days after the date of your first missed day from work to issue your first lost wage check.  You do not count your last day of work in this calculation

• you will not receive payment for the first 7 days of missed work unless you miss 21 consecutive days
• once you miss 21 consecutive days, the insurance company must pay you for the first 7 days of missed work
• if you do not miss 21 consecutive days, you should receive 2 weeks’ worth of benefits by day 21 after your first day of missed work

Confused?  You are not alone.  The law seeks to balance the needs of workers for money to pay their bills and the needs of the insurance company to conduct its investigation and set up a payment schedule.  Personally, I think that an employee’s suffering when he is hurt and broke for 3 weeks outweighs an inconvenience to an insurance company, but this is the law as it exists currently.

I hope you also see the importance of timing in your workers’ compensation case.  It is no mistake that company doctors will try to return you to work before 21 days elapses.  In fact, efforts by insurance companies to put my clients back to work too early results in a lot of conflict in workers’ compensation cases.  If you are not careful, the insurance company can use its control over your medical treatment to manipulate your rights to lost wage payments.

You may sense that the workers’ compensation insurance company does not have your best interests at heart.   Please do not hesitate to call me if you want to discuss this – I can be reached at 770-351-0801.

Assuming that your claim has been accepted and you are not currently working, your employer’s insurance company must pay your weekly benefit checks on time.

Your first weekly benefit check must be mailed on day 21 after the accident if that check is mailed within Georgia, and it must mailed on the 18th day after the accident if it is mailed from an address outside the state of Georgia.  The day of the accident does not count when calculating dates.

Subsequent checks mailed from within Georgia must be postmarked as of the last day of the week (i.e. Saturday) in order for payment to be considered timely.

Subsequent checks mailed from outside of Georgia must be postmarked by the Thursday of the week it is due in order for the payment to be considered timely.

Checks Not Mailed on Time

If your check is not mailed on time, one of two late penalties apply.  If you are receiving weekly benefits because an administrative law judge at the State Board of Workers’ Compensation ordered the insurance company to pay you benefits, then you are entitled to a 20% late penalty on all benefits that are not timely mailed.  This means the insurance company must pay your full weekly benefit plus an additional 20%.

If you are receiving weekly benefits because the insurance company voluntarily started paying you, without an order from the Board, then you are entitled to a late penalty of 15% on all benefits that are not timely paid.  These penalties are automatic and an order from the Board is not necessary for them to be paid.

Late payment of weekly TTD (temporary total disability benefits) checks happens frequently and I am regularly on the phone with insurance adjustors trying to get my clients’ checks mailed.  If your checks are not getting to you on time, I’d be happy to help you – please call my office at 770-351-0801.

In 1990, the Georgia legislature gave injured workers an important new right, the “claimant’s IME (independent medical exam).  Under this law, an injured worker can request an independent medical examination with a doctor of his choosing, paid for by the employer’s insurance company.

When properly used as part of a effective claim strategy, your claimant’s IME can be used to:

• refute the unfair and biased claim of industrial clinic doctors
• contest a premature return to work demand by the insurance adjuster
• support a request for a change in authorized treating physician
• support a reasonable settlement demand

However, as important and valuable as your claimant’s IME rights may be, this right is not open ended and it can be wasted if not used properly.

Specifically, I am referring to situations in which you may have injuries to multiple body parts and you are receiving treatment from several different doctors.   Recently, for example I represented a young man who had fallen almost 4 stories from a building, causing injury to his spine, a broken leg and a closed head injury.   In this case, I felt that the orthopedic doctor treating the leg and back injury, and the neurologist treating the closed head injury were not providing the level of treatment appropriate for the degree of injury.

Unfortunately, Georgia law does not provide for more than one claimant’s IME, even when multiple body parts are affected.   Therefore, I had to choose between an orthopedist and a neurologist for the claimant’s IME.  In this particular case I chose to request an orthopedic IME because I felt that my client had a more immediate need for back care and because I felt that I would have opportunity later to challenge the opinion of treating neurologist.

The points to remember about the claimant’s IME:

• be very careful about choosing to use this right – you will have one and only one opportunity to demand an insurer paid independent medical exam.  Knowing when to assert this right and knowing who to choose to perform this exam are crucial factors
• if you have injury to more than one body part, you only get one IME
• the insurance adjuster is not an appropriate resource to advise you about how and when to assert your IME rights

If you have questions about your claimant’s Independent Medical Exam rights, please do not hesitate to call me at 770-351-0801 begin_of_the_skype_highlighting 770-351-0801 end_of_the_skype_highlighting or email me.   Please also feel free to post a comment on my blog.