Recently in Georgia Workers' Compensation Category

May 8, 2015

Sheena H. v. W. Va. Office of Ins. Comm'r - Statute of Limitations on Workers' Comp Claims

As in any civil proceeding, workers' compensation claims are subject to a specific statute of limitations, which is set forth by the state.
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A statute of limitations is a time frame in which claims must be filed in order to be valid. The idea is courts want to limit the possibility of becoming backlogged with years-old cases for which evidence may have eroded or be non-existent. So for example in Georgia, the general rule is claims for workers' compensation benefits have to be filed within one year of the accident date, or else the right to compensation is barred. This is different from the time limit for other types of personal injury claims, which is two years. That's why injured workers must act quickly to secure benefits.

However, the statute of limitations can be "tolled" or postponed in certain cases. Those include situations in which income or medical benefits have been paid voluntarily by an employer to or on behalf of the injured worker. Claims involving a death have to be filed within one year of the date of death. There are also exceptions made when workers were not aware injuries were work-related.

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April 30, 2015

Vandre v. State ex rel. Dep't of Workforce Servs. - Compensation for Existing COPD

While workers who have been injured on-the-job need not prove their employers were negligent, they do need to show their injuries arose out of and in the course of their employment. lungs2.jpg

In some instances, this is straightforward. A carpenter who falls from a ladder on a job site and twists his ankle should receive compensation. Where matters can get complex is when there is dispute about whether injuries or illnesses were in fact caused by work, or if not, whether they were exacerbated to any great degree by a work accident.

A perfect case-in-point on this is Vandre v. State ex rel. Dep't of Workforce Servs., a matter that was recently weighed by the Wyoming Supreme Court.

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April 20, 2015

Georgia Bill Would Cut Time Workers Have to Sue for Work Injury

Lawmakers from two separate Georgia state committees recently met to discuss a proposal that would slash the amount of time injured workers have to pursue a claim with the state board of workers' compensation.
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Currently, workers have up to five years to file a work injury claim with the State Board of Workers' Compensation. House Bill 536 would significantly cut that by more than half, down to 2 years.

The intent, say Republican backers, is to shorten the amount of time an employee can leave an employer and then file a workers' compensation claim. Proponents of the measure say companies are burdening unfairly because insurance premiums are set higher in this state to cover for the extended risk of a claim. They argue that's money that could be going to hire more workers or give additional raises.

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April 12, 2015

Appeal of Brandon Kelly - Truck Accident Was Work-Related, Compensable, Court Rules

Justices of the New Hampshire Supreme Court recently ruled the state workers' compensation appeals board erred when it found not compensable the work injuries of a man who suffered severe injury during a truck accident that occurred while he was driving from a job site to the main shop.
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Specifically, the board in Appeal of Brandon Kelly ruled the worker, who fell asleep at the wheel of that truck, had to show his weariness was work-induced. The worker, who suffered a leg amputation as a result of the crash, had allegedly failed to prove this, the board found.

But the state supreme court ruled this was not a prerequisite to receiving workers' compensation, and there was no question the injury arose out of and in the course of worker's employment. Thus, his employment was a substantial contributing factor in the injury, and he deserved to be compensated.

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April 6, 2015

Hildebrant v. State ex rel., Dept. of Workforce Servs. - Ladder Fall Compensation for Surgery Denied

Falls are one of the top causes of injury in the workplace. The Centers for Disease Control and Prevention reports 43 percent of falls over the last decade have involved a ladder. Among construction workers in particular, ladders are involved in 80 percent of all falls that land them in the emergency room.
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Workers who suffer injury as a result of a ladder fall should pursue workers' compensation to cover the cost of medical expenses, as well as lost wages for the amount of time they are unable to work.

This was the case in Hildebrant v. State ex rel., Dep't of Workforce Servs., where an HVAC technician suffered a bad fall while working on a college campus construction project. The worker fell about 20 feet off the ladder, and was taken to a local hospital by ambulance. He complained of pain in his lower back, right shoulder and right leg.

After receiving emergency care, he was discharged but received ongoing care from a physician. The doctor indicated that a small compression fracture in the man's back appeared to be chronic, but he couldn't rule out the possibility that it was caused by the fall. He also had some bone bruising, torn tendons and other issues, but no acute traumatic changes to the lumbar spine. Although he noted patient had ongoing pain, he did not see anything that warranted surgical intervention.

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March 30, 2015

Hoyle v. DTJ Enters., Inc. - Intentional Torts and Employers

The intent of workers' compensation law is to ensure costs resulting from industrial accidents and conditions are borne largely by industry. By ensuring workers receive definite and speedy payments for medical expenses and lost wages incurred for on-the-job injuries and illnesses, they forfeit the right to pursue further litigation.
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This is true across the country, and it's referred to as "exclusive remedy." It means workers' compensation is the exclusive remedy through which workers can be compensated for occupational ailments or injuries. Companies are otherwise immune from civil litigation on these matters.

But, as with all areas of law, there are exceptions. There is the third-party litigation that can be brought against parties who are not considered employers. Beyond that, there is the realm of "intentional tort" by employers.

This has been very narrowly interpreted by most courts. In some states, it's all but impossible to bring such a claim. The definition generally holds anything less than outright, specific intention on the employer's part is insufficient to permit exception to the exclusivity rule. This typically is not going to extend to situations in which employer acts with indifference or even creates an exceptionally or unlawfully hazardous work environment. It instead means the actual intent to cause harm to the worker.

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March 20, 2015

Reports: Workers' Compensation Protections on Chopping Block

Two reports. One by NPR and ProPublica. The other by the Occupational Safety and Health Administration. Released at the same time. Both on the issue of cuts to workers' compensation nationwide. worker2.jpg

Same conclusions: Workers are quickly losing the aspects that made the bargain of workers' compensation worthwhile to employees. Due to legislative action in the last decade, benefits are not easily obtained and the monthly payouts are often far less than they should be. When the exclusive remedy of workers' compensation was established, workers traded the right to sue employers for negligence related to on-the-job injuries in exchange for assurance that their company would subsidize their basic needs while they recovered.

There is now a wide-ranging disparity of these benefits among states, and if action isn't taken soon, we will see this trend continue.

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February 28, 2015

Sullwold v. Salvation Army - Heart Attack at Home Deemed Compensable

In most cases, injuries that happen at home or are attributed to an internal, personal condition will not be compensated through workers' compensation insurance. That's because injuries must arise out of and in the course of one's employment.
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However, the recent case of Sullwold v. Salvation Army, before the Maine Supreme Judicial Court, proves there are always exceptions.

The case involved a high-level executive for a non-profit organization who died of a heart attack while walking on the treadmill at home. Three factors made this case different than most others we might see in similar circumstances. The first is that plaintiff was given permission to work from home on some occasions, and this was one of those. The second is that although he was on a treadmill when he suffered the heart attack, he was working from his smartphone as he walked. And finally, his widow was able to produce evidence indicating the heart attack was caused in large part due to work-related stress.

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February 10, 2015

Morales v. Zenith Ins. Co. - 11th Circuit Affirms Exclusive Remedy Provision

In a decision aligned with that of the Florida Supreme Court, the 11th Circuit Court of Appeals - the same one that oversees the review of Georgia cases - backed the exclusive remedy provision of workers' compensation law as the sole source of compensation for a deceased worker's family.
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The exclusive remedy provision - which is woven into workers' compensation laws in all 50 states - strips workers of the right to sue employers, even when the incident leading to injury or death was the result of negligence. Rare exceptions are made in certain states when it can be shown an employer displayed wanton or reckless disregard for the safety of workers. However, in most cases, workers and their families will be limited to workers' compensation benefits from an employer.

Some situations may be ripe for civil litigation against a third-party wrongdoer, but that will depend heavily on the underlying circumstances.

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February 5, 2015

State ex rel McCormick v. McDonald's - Maximum Medical Improvement

In workers' compensation law, the concept of maximum medical improvement can be an especially thorny one. That's because this determination spurs important questions about the continuation and amount of benefits.
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Maximum medical improvement is considered the point at which a worker's medical condition has stabilized to the point that any further improvement isn't likely, even in spite of ongoing treatment or rehabilitation. Essentially, it's a plateau, meaning the worker is "as good as he/she is going to get."

This can indicate full recovery, but it also can simply mean the patient is not going to get any better. It is from this point a determination can be made regarding permanent partial impairment.

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January 31, 2015

Demetres v. East West Construction - Subcontractor Deemed "Co-Employee"

When a worker suffers an on-the-job injury, state law holds workers' compensation benefits are the sole source of compensation a worker can receive, with few exceptions. These benefits are considered the "exclusive remedy" a worker can pursue against an employer.
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Other third parties may still be vulnerable to a negligence lawsuit, but plaintiffs should bear in mind that some are still statutorily protected under workers' compensation law in some cases.

For example, a negligent third-party driver could be held liable, as could potentially the property owner of a construction site. However, there are some exceptions. Co-workers, for example, are usually protected. (A 2012 Georgia Supreme Court decision in Smith v. Ellis held co-workers could potentially be held liable for injuries caused if their negligent actions occurred outside the course and scope of their employment.)

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January 6, 2015

Martin County Coal Co. v. Goble - On Permanent Psychological Impairments

In most work-related injury claims, the primary focus is on physical injuries. However, there are some cases in which psychological injuries may have been sustained as well as a result of the physical injury or related work incident.
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Such injuries, which may include depression, anxiety, post-traumatic stress disorder (PTSD), pain disorder and adjustment disorders, are more difficult to prove to state workers' compensation board officials. This is particularly true when injured workers are seeking to show permanent psychological injuries.

But as the recent case of Martin County Coal Co. v. Goble, it most certainly is possible with the proper evidence.

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October 30, 2014

Humphrey v. Lowe's - Workers' Compensation After Voluntary Exit

Georgia workers' compensation injury claims are rarely straightforward, even when it's clear injury occurred in the scope and course of employment.
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This is especially true with regard to temporary total disability benefits when a worker quits, is fired or is laid-off for reasons unrelated to the injury.

Temporary total disability (TTD) benefits are those designed to help workers recover lost income when they are unable to work due to a job-related injury. Workers qualify if they cannot do the kind of work they did before because of the accident. If an employee is deemed entitled to collect temporary total disability benefits, those may continue until:


  • He returns to work

  • His doctor says he can return to work

  • His doctor says he has permanent disability that is not expected to improve (at which point you can seek permanent disability benefits)

  • More than 400 weeks have passed since the injury (unless injuries are catastrophic, in which they case benefits could continue indefinitely)

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October 20, 2014

Barzey v. City of Cuthbert - Non-Dependent Parent Precluded From Workers' Comp Death Benefits

The Georgia Supreme Court has upheld the constitutionality of a provision of the Workers' Compensation Act that precludes non-dependent parents from recovering benefits following the death of an adult child killed in the course of employment.
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In Barzey v. City of Cuthbert, plaintiff argued the provision violated her constitutional rights to equal protection and due process. The state supreme court disagreed, finding the law was sound, even though it left plaintiff with virtually no means of monetary recovery for her son's death.

Workers' compensation, the court reasoned, is established to allow exclusive remedy to an employee's heir's for the worker's death during the course of employment, and the act expressly states that compensation for the death of a worker is to be payable only to dependents, and even then, only during dependency.

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October 10, 2014

Third-Party Co-Worker Lawsuit After Workers' Comp Claim

After filing a workers' compensation claim in Georgia, there may be other avenues of compensation available. These include third-party lawsuits, which can be brought against anyone from manufacturers of defective products to owners of a construction site where an injury occurred.
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In some situations, third-party lawsuits may be brought against co-workers if it can be shown their negligent actions were proximate cause of your injuries. However, there is one key point that must be proven in order to bring a claim in these cases. It will need to be proven the co-worker was acting outside the scope of his or her employment at the time he or she caused the injury.

The Georgia Supreme Court set this precedent rather recently in the 2012 case of Smith v. Ellis, reversing the precedent set previously by the Court of Appeals ten years earlier in Ridley v. Monroe. The principle question in Smith was whether a worker who files for - and receives - workers' compensation in exchange for a no liability settlement with his employer is then allowed to turn around and sue the co-employee who caused the injury. The appellate court had answered "No" in Ridley, holding OCGA 34-9-11(a) bars such recovery because the employee has already obtained relief. The state supreme court held that while Ridley was correctly decided, and workers are barred from collecting compensation from co-workers acting within the scope of employment at the time of an accident, they may pursue damages from a co-worker as third-party if the co-worker was acting outside the scope of employment.

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