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Sometimes, the question of whether an injury arose in the course and scope of employment is simple because of where it happened or how it happened. laserbeam

Other times, the issue is more complicated. Perhaps it didn’t happen at the job site or during normal working hours or while worker was engaged in an activity that is supposed to be considered “fun.”

In these situations, where workers participate and are injured during work-related activities outside of their normal, everyday duties, it can be more challenging to secure workers’ compensation benefits. Continue reading →

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A woman whose husband was killed on-the-job in Atlanta while working for the city is seeking to challenge Georgia’s sovereign immunity and worker’s compensation exclusive remedy provisions.accident1

When her husband was killed, he was riding in the cab of a city-owned garbage truck, driven by his co-worker. Problem was, his co-worker was drunk. So drunk, in fact, his blood-alcohol level was three times over the 0.08 limit. (In commercial vehicles, the legal limit is 0.02, although the city has a zero tolerance policy.) Officials later found a bottle of vodka in the grass. Decedent had no alcohol in his system.

Her husband was thrown from the vehicle and died on impact. She too was a city employee. Her supervisors were the first to inform her of his passing.

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A plaintiff in a Georgia third-party liability lawsuit against an equipment manufacturer following a work-related injury is arguing against a defense request to add his employer as a non-party defendant. gavel21

In the case of Walker v. Tensor Machinery, defense asserts employer’s negligence was a factor in worker’s injury. Even though employer cannot be legally sued by plaintiff due to exclusive remedy provisions that bar workers from suing employers for occupational injuries, defense wants to add the company as a non-party defendant to potentially shift liability. This is called apportionment of damages. If a non-party defendant is found to be partially liable, plaintiff can’t collect that portion of damages, but the named party won’t be responsible for paying it.

Plaintiffs, meanwhile, argue that the immunity the employer obtains from exclusive remedy means there is no duty and therefore there is no tort and thus the employer can’t be found at-fault. Continue reading →

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If a worker in Georgia is injured on the job and cannot work for more than seven days, he or she is likely entitled to workers’ compensation benefits. tirednesssetsin

But there are several different kinds of benefits, which depend not only on the severity of injury, but the impact that injury has on the worker’s earning capacity.

Those type of benefits include:

  • Temporary Total Disability benefits
  • Permanent Total Disability Benefits
  • Permanent Partial Disability Benefits
  • Death and Dependency Benefits

Except for those injuries determined to be catastrophic (i.e., severe paralysis, severe burns, blindness, hearing loss, head injuries or amputations), benefits can only be paid for up to 400 weeks (or almost eight years).

In cases where permanent total disability is alleged, claimant will need to secure help from an experienced workers’ compensation lawyer because not only is there much at stake, it’s a difficult threshold to meet. These will typically be “catastrophic injuries,” as defined by state law.

However, different courts have weighed the issue differently.

For example, in the recent Ohio Supreme Court case State ex rel. Tradesmen Int’l v. Indus. Comm’n, a man was granted an award of permanent total disability compensation for a combination of conditions. He had a sprain to his low back. He suffered chronic pain syndrome and depression. He also had a sprain in his shoulder and wrist and disc protrusion in his spine.

All of this, the court found, could be traced to a 2003 work injury that was compensable.

He was originally awarded benefits at that time.

However, he applied for permanent total disability compensation in 2011. In his petition, he submitted a report from his treating physician in which it was stated claimant was restricted to very little movement throughout the day. He couldn’t lift more than 10 pounds. He also had to avoid any repetitive stooping, twisting, bending, pushing, lifting or pulling. Further, he would need frequent periods of rest to lie down and relieve back pain. The doctor noted the “significant difficulty” claimant would have in maintaining any kind of regular schedule.

Two other doctors also submitted medical reports indicating claimant could not work, given his extensive physical restrictions.

A hearing officer agreed, concluding he was unable to work and granted him permanent total disability.

The man’s former employer challenged that finding, alleging the court abused its discretion in ordering permanent compensation. Company alleged the primary care doctor had never said claimant’s disability was only the result of work-related injury.

However, the court of appeals concluded that while the doctor did state claimant could perform sedentary work, he also outlined a set of restrictions that were so narrow they all but effectively precluded all possible employment. The commission noted it wasn’t just whether the doctor concluded he could not work, but whether that conclusion is consistent with the physical restrictions from the doctor.

In this case, the restrictions were so limiting as to render him incapable of working.

Employer then appealed to the Ohio Supreme Court, which affirmed, with the additional finding that benefits should be retroactive to the date of his primary care doctor’s initial report – in 2011.

For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-303-7770.

Additional Resources:

State ex rel. Tradesmen Int’l v. Indus. Comm’n, June 24, 2015, Ohio Supreme Court

More Blog Entries:

Gill v. Brescome Barton, Inc. – Work-Related Knee Injuries, June 15, 2015, Atlanta Work Injury Lawyer Blog

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Many employers host various “non-work” social gatherings, whether for charity or customer/employee relations or holidays. reception1

If an employee suffers injury or illness at one of these functions, the question of workers’ compensation becomes a complex one. There are a host of specific circumstances that could come into play, but primary question is probably going to be whether the event was incidental to employment. That is, even if you weren’t performing regular company duties, were you doing something that was considered an act of employment?

Courts weighing such cases are going to look at:

  • Whether the event was mandatory or attendance was expected
  • Whether workers were paid for their time
  • How workers were transported to the event
  • What benefit – if any – the company derived from employee’s presence/actions

But there is no bright line rule for how such cases should be decided, so courts base their rulings on state precedent and the strength of arguments presented by the Atlanta workers’ compensation lawyers.

A recent case in Nebraska dealt with this issue, and it reveals how complex these matters can be and how even different courts in the same jurisdiction grapple with related questions.

In  Jacobitz v. Aurora Coop., the question before the Nebraska Supreme Court was whether an employee who was injured falling off a truck at a customer appreciation supper held by his employer was entitled to workers’ compensation benefits.

Law in that state holds recreational or social activities may be deemed within the course and scope of employment when they occur on premises during a time that is a regular incident of employment, when the employer expressly or impliedly requires participation, or when employer derives substantial benefit from the activity beyond the intangible improvement of employee health/morale.

According to court records, the company involved owned grain elevators in various locations throughout the state. At one of those locations in August 2010, the company held a customer appreciation dinner, organized by a local manager. The purpose was to thank local customers for their business over the past year.

A total of 17 invitations were sent and the company’s vendors sponsored the dinner and paid for food and drinks. In addition, six employees and their spouses were also invited. The purpose, managers would later say, was to boost morale, but attendance was not expected and those who did show up were not paid for their presence. Workers were also not required to help organize, serve or clean up at the event.

However, another employee – characterized as a temporary, part-time worker – delivered event invitations during work hours. He also helped set up the dinner. Just prior to the supper, he said the supervisor told him it would be “to his benefit” to be there, and asked him to go home, change his clothes and return because the company “needed my help.” He would later say he thought he would get in trouble if he did not come.

The supervisor, however, said the worker was not required to be there, but told he could come and eat if he wished.

When he did return, worker did not help to prepare food, did not help to serve it and didn’t help clean up.

When the dinner was over, though, worker helped the supervisor load a large meat smoker, supplied by one of the vendors to cook food for the dinner, onto a trailer so it could be towed. He then reportedly rode in the back of the truck with the smoker with his supervisor behind the wheel. He fell out of the truck – though no one is sure how – and sustained severe injuries.

Compensation court ruled the injury was compensable as it occurred in the course and scope of employment because company derived a substantial benefit from workers’ presence, as he was deemed a “good company representative” in meeting/greeting customers and helping with various tasks.

Defendant employer appealed the case all the way to the state supreme court, which reversed. The court found the correct legal standard was to determine whether employer received a substantial direct benefit, as opposed to just substantial benefit.

The state supreme court did not say definitively the injuries were not compensable. However, the case was remanded back to the lower court for application of the correct legal standard.

For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-303-7770.

Additional Resources:

Jacobitz v. Aurora Coop., July 10, 2015, Nebraska Supreme Court

More Blog Entries:

Report: Young, Immigrant Construction Workers at Small Firms at High Injury Risk, June 20, 2015, Atlanta Worker Injury Attorney Blog

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Many people drive to and from work, but some are required to drive in the course and scope of employment. workdriving.jpg

Generally, those who drive during the work day for work purposes may be covered by workers’ compensation in the event of a serious crash. Meanwhile, those who are simply “coming and going” – i.e., commuting to and from work – are usually not covered.

The recent case of Seabright Ins. Co. v. Lopez highlights arguments that can arise between an employer/insurer and an injured employee/surviving family members in workers’ compensation claims following an auto accident.

According to court records, employee had worked for the oil and gas processing company eight years at the time of the accident. While he lived with his wife in one Texas city, he almost never actually worked in that city. He was assigned to work at various remote locations, and during these jobs, he usually made his own living arrangement, typically staying at a local motel. He was paid hourly, plus given a stipend for food and lodging when he stayed out-of-town. He was also given a company vehicle to get to and from different job locations, but he wasn’t paid for his travel time to and from job sites.
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The state of Georgia requires companies with more than three workers to carry workers’ compensation coverage.
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Most states have similar requirements, though they do vary.

In Georgia, when a company fails to obtain workers’ compensation coverage, injured employees are in real need of legal representation. While most workers hurt on the job are barred from filing a lawsuit against their employer per exclusive remedy provisions of workers’ compensation law, companies that don’t have this type of insurance aren’t shielded in the same way. That means workers can pursue litigation. However, unlike in a workers’ compensation case, they will have to prove the company was negligent and caused their injury. That means there is a higher proof burden.
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Workers who suffer successive work injuries also tend to have a tougher time securing benefits, particularly if the injuries occurred under the watch of different employers. medicaldoctor.jpg

In these cases, benefits must be apportioned based on what percentage of worker’s ailments were caused by which injury. This can result in a complicated process that will involve extensive review of medical records, numerous independent exams and testimony from expert witnesses.

The case of Warren Props. v. Stewart is illustrative, having ping-ponged through various courts trying to sort out the appropriate course of action for successive injuries at separate employers. Most recently, the case was before the Iowa Supreme Court. That court held an employer who is liable to compensate a worker for a work-related injury does not have to pay for pre-existing disability that arose from employment with a different firm, or from causes unrelated to employment when the worker’s earning capacity wasn’t re-evaluated in the competitive job market prior to the successive injury and after.
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Workplace injury can happen almost anywhere. From fast food restaurants to corporate headquarters, the potential is always there. However, certain industries and jobs pose a greater vulnerability to work-related injury.
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The American Society of Safety Engineers and the National Institute for Occupational Safety & Health recently released a report identifying a group of workers with multiple, overlapping vulnerabilities. These are employees who:

  • Work in construction
  • Are young
  • Are immigrants
  • Are Hispanic (minority)
  • Work for smaller companies

Each of these characteristics poses a higher risk of injury. However, workers who possess these traits are more likely to get hurt or sickened and more likely to have poor health outcomes as a result.
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It’s not uncommon for employers to switch workers’ compensation insurance carriers periodically. However, this action caused a headache for the courts when it came to a worker who suffered two compensable work-related injuries while working for the same employer, but covered by two different insurance carriers.
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The case, Gill v. Brescome Barton, Inc., wound its way recently all the way to the Connecticut Supreme Court.

According to court records, worker suffered a compensable, work-related injury to his left knee back in 1997. At the time of that injury, his employer was insured for workers’ compensation benefits by Company 1.
Continue reading →