January 22, 2015

Barnes v. Charter 1 Realty - Idiopathic Exception to Workers' Comp Coverage Clarified

In order for a workplace injury to be compensable, it has to arise out of and in the course of employment. This means there has to be some connection between the conditions under which employee was working the injury that resulted. feetwalking.jpg

Usually, if an injury is deemed idiopathic, or due to some internal weakness or breakdown, it's not considered compensable by workers' compensation because though it may arise in the course of employment, it does not arise out of employment.

An example might be a heart attack or seizure that occurs at work, but had nothing to do with work.

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January 12, 2015

US Bank Home Mortgage v. Schrecker - Afternoon Break Street Crossing Injury Not Compensable

State supreme court justices in Kentucky reversed three lower courts in finding worker injured in a vehicle accident while crossing the street to access a fast-food restaurant adjacent to her office was not entitled to collect workers' compensation for her injuries.
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The court determined the worker was not acting in the course and scope of employment because she undertook the route in "in order to seek personal comfort." In so doing, the court found, she exposed herself to a hazard that was not only totally removed form the typical day-to-day coming-and-going activity, but it was also illegal per state law (she was jaywalking) and thus impliedly barred by the company.

The ruling in US Bank Home Mortgage v. Schrecker underscores once again how difficult it can be to secure workers' compensation payments when a worker leaves the traditional office setting. Work-related car accidents may be compensable, but one must prove he or she was acting in the course or scope of 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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December 30, 2014

W. World Ins. Co. v. Armbruster - Seasonal Worker Deemed "Employee," Excluded From Tort

Many companies in Georgia and elsewhere employ workers on a part-time, temporary or seasonal basis. State laws vary on the degree of workers' compensation insurance coverage companies are required to provide for these workers in the event of injury.
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Some states don't require any coverage at all, while others require companies to carry as much coverage for these workers as they would any other full-time employee. In Georgia, the state requires most employers with three or more workers - including part-time and seasonal employees - to purchase workers' compensation for those individuals.

There are some exceptions - federal government agencies, railroad carriers, domestic servants and farm laborers.

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December 20, 2014

Damme v. Pike Enters., Inc. - Court Rejects Employer's "Temporary System Aggravation" Claim

In any workers' compensation case, it tends to be in the employer's best interests to downplay the extent to which an employee was hurt and the causal connection between a worker's injury and the work accident.
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Even if the state commission or courts won't completely deny a worker benefits, it may be possible to have benefits significantly reduced if employer is successful on either of these fronts.

In the recent case of Damme v. Pike Enters., Inc., attorneys for the company argued the worker's pre-existing degenerative back condition undercut her claim for benefits for work injury because the on-the-job accident was not in fact an "injury" but rather a "temporary system aggravation."

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December 17, 2014

Qualifying for Benefits

In Georgia, there are many questions to consider for understanding whether an injured employee qualifies for Workers' Compensation benefits. An employee who is injured in an on the job accident is faced with the tough battle of healing as well as complex legal issues that are difficult to deal with while recovering. The first step in any claim is to be certain that the employee is eligible for benefits.

qualifying-benefits.jpgThe first question to answer is whether the employee was injured during working hours at his/her place of employment. Sometimes, an employee is injured in a car accident while traveling for their employer. Other times an employee might be loaned from one employer to another. What about the employee who works from home? These are all questions that must be answered as the first step when making a claim.

It is very important for the employee to notify the employer of his injury as soon as possible. Failing to notify the employer can result in non-payment of benefits. This does not mean talking with a co-worker about the accident. A person in a supervisory position must be notified. This notification must take place within one year of the accident date.

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December 15, 2014

Problems with Your Employer

For an employee, one of the most difficult aspects of a Workers' Compensation claim is communicating with their employer about their injury. Many times the injured worker is not comfortable speaking with their employer because they are afraid of angering their boss, saying something that will prevent them from getting their benefits or being fired from their job. In the worst case scenario, the worker's injuries are so severe that they cannot communicate with their employer at all.

Problems-with-Employer-275.jpgTalking with an employer is not easy when you have been injured. The employer might take the position that the employee has not been injured at all, but is only faking the injury in order to get out of work. This often happens with injuries that do not cause broken bones or more severe injuries, but with soft tissue injuries such as back strains. In these cases, it is very important to have a medical examination so that a doctor can support your claim.

Another problem that often happens is that your employer will tell you something entirely different than the insurance adjuster tells you regarding your claim. The insurer is paid by the employer, so you would think that they would advise you in the same way. However, there are times when they disagree with their instructions. The employee is left not knowing what to do and in a state of confusion.

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December 12, 2014

Uninsured and Self-Insured Employers

In Georgia the law requires that employers have Workers' Compensation insurance coverage if the Employer has three or more employees. All too often, employers fail to purchase Workers' Compensation coverage. When this happens, the injured employee is in real need of legal representation.

Uninsured-Employer.jpgWhen an employer fails to have Workers' Compensation insurance coverage, the employee can request a hearing with the State Board. In this hearing, the employee can request to be awarded medical expenses that are injury related, weekly income benefits, attorney's fees, penalties and even criminal prosecution.

Ironically, the injured worker cannot sue the uninsured employer in civil court. In Georgia, Workers' Compensation is the "exclusive remedy" for an injured worker. This means that the injured worker cannot file a lawsuit against the uninsured employer. Instead, the injured worker must file a claim with the State Board of Workers' Compensation. This is the only method that the employee has to collect benefits, when filing a claim becomes necessary.

There are times when an employer is self-insured. This means that the employer has agreed to pay for Workers' Compensation claims out of pocket rather than buying an insurance premium. However, there are strict guidelines for an employer to follow when declaring themselves self-insured. If these guidelines are not followed there are legal ramifications for the employer.

Filing a claim against an uninsured employer is a difficult task for most injured workers. Many times it is hard to get the information that you need from your employer. Sometimes employers will refuse to give out any information to an employee. This results in the employee being delayed in receiving income benefits and from getting the medical treatment that they need.

How can you determine whether your employer has insurance? We are here to help you with your claim and to answer any questions that you may have. For more information contact us: J. Franklin Burns, P.C. - 1-404-303-7770.

December 12, 2014

In re Essex Ins. Co. - Work Amputation Victim Fights for Insurance Coverage

It is an unfortunate reality that far too many employers and insurance companies in Georgia prioritize profits over people. Even in cases where a worker has suffered a devastating and lifelong injury, it's not uncommon for these entities to deny claims for coverage, forcing the worker to engage in litigation for rightful compensation.
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In the recent case of In re Essex Ins. Co., before the Texas Supreme Court, employer and insurer are trying to avoid paying compensation to a man who lost his arm while operating a tortilla machine.

The company didn't have workers' compensation coverage, but it did have a general liability policy. Both the worker and the company say he was an independent contractor - not an employee - which the insurance company disputes. This point hasn't yet been resolved, but the state supreme court ruled the worker has to prove the tortilla company is liable for the injury before he can pursue a separate claim against the insurance firm.

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December 10, 2014

Offer of Suitable Employment

In some Workers' Compensation claims in Georgia, there may come a time when the Authorized Treating Physician approves a job that he or she believes that the worker can perform. Typically, the doctor will be given a job description by the insurance adjuster that will include the physical requirements that are necessary for the new job. When this happens, the Employer/Insurer will make what is known as an offer of suitable employment to the employee.

suitable-employment.jpgThis offer must be made in writing to the employee with a description of the job to be performed, the hours to be worked, and the rate of payment. The notice must also include the location of the job, with the date and time that the employee is to report for work. The authorized treating physician must have evaluated the employee within sixty days prior to the offer of employment. The Employer/Insurer must also file forms with the State Board that the employee was notified at least ten days before the date the employee was required to report for work.

Failing to report to work will most likely result in the suspension of the employee's income benefits. But, what happens when the employee shows up for work? The employee must attempt to perform the job duties for eight cumulative hours or one scheduled work day, whichever is longer. If the employee does not stay on the job for that period of time, the employee's payment of income benefits may be suspended.

If the employee attempts to do the job offered, but cannot continue for more than fifteen scheduled work days, the employer/insurer must reinstate their income benefits. If the Employer/Insurer fails to reinstate the income benefits, they give up their defense that the job offered was suitable employment for the period of time the Employer/Insurer did not pay the weekly income benefits.

If you have been offered suitable employment or have concerns regarding this issue, please contact us. We are here to help. J. Franklin Burns, P.C., at 1-404-303-7770.

December 8, 2014

Car Accidents While On the Job

Many employees must travel as a part of their job requirements. Sometimes injuries result from car accidents while traveling for business purposes. Workers' Compensation benefits are payable, depending on what the employee was doing at the time of the collision.

car-accident.jpgTraveling to meetings or to make sales calls would be an accepted claim. Making deliveries and running errands for a supervisor or boss would also be an accepted claim. Operating a motorized vehicle, such as a semi-truck would be a payable claim. If you get into a car accident while traveling to and from work, in most cases the injuries would not be accepted as a Workers' Compensation claim.

An issue arises in on the job car accidents when another party is at fault. When there is insurance coverage under the Employer's Workers' Compensation policy and also a liability insurance policy from the at-fault driver's insurance the benefits are coordinated very carefully. There is a possibility that the injured worker will have both a Workers' Compensation claim and a Personal Injury claim in civil court.

Filing a Workers' Compensation claim for injuries resulting from car accidents can insure that medical bills and income benefits will be paid. However, in Georgia, a Workers' Compensation claim does not pay for pain and suffering due to injuries. In civil court, making a claim for pain and suffering would be possible. Likewise, the Workers' Compensation insurance carrier would not pay for property damage to your car. These damages would be paid by the automobile liability insurance carrier.

An employee who is injured on the job in an automobile accident must be very careful not to sign away his rights by settling with one insurance carrier before settling with another. The settlement documentation with either claim must be carefully worded and must consider the claim that is not yet settled. This is a tricky area of the law and one in which it is always wise to have professional representation.

If you have been injured in a car accident while on the job, please contact us right away. Let us help you decide the best course of action for you. J. Franklin Burns, P.C., at 1-404-303-7770.

December 6, 2014

Auto Owners Ins. Co. v. All Star Lawn Specialists Plus - Defining Employee Versus Independent Contractor

Although workers' compensation law varies from state to state, there is one general principle that remains fairly consistent: Exclusive remedy. This holds that if an employee is injured or killed while working and his employer carries workers' compensation insurance, the only damages he may collect from his employer is workers' compensation.
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There are, of course, options for third-party liability lawsuits and social service benefits for long-term disabilities. But in general, workers' compensation will be the only money collected from an employer and/or an employer's insurer in these instances.

However, an exception can be made when the company did not carry workers' compensation insurance coverage, or when the individual making the claim was not an employee. Independent contractors have no right to collect workers' compensation coverage, and therefore may pursue litigation. Sometimes, this issue is straightforward. Bear in mind, though, just because a company labels a worker an "employee" does not necessarily make it so. When there is a dispute, courts will weigh a host of factors, such as the degree of control a company had over the worker's duties and method of payment.

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December 5, 2014

Being Watched: Surveillance in a Workers' Compensation Claim

Injured workers in Georgia are often subjected to surveillance by a private investigator hoping to "catch" them with pictures or on video doing something that will help the insurer to cut off the employee's benefits. These private investigators are working for the insurance company on a regular basis. Their goal is to be able to suspend or cut off your Workers' Compensation benefits.

surveillance.jpgAnytime that an injured worker is outside of their home, there is a good chance that a private detective is watching. Simple things such as taking the trash out, bending to pick up something in the yard, carrying and putting a child into a car, or picking up a delivery package from the porch can be captured by the investigator.

When an injured worker leaves home there is also a great chance that there is a private investigator watching to see if the injured worker will do something to compromise their claim. Running errands, driving, visiting friends, eating out in restaurants and even going to church are all times when the investigator may be working to try and catch the injured worker doing physical activity that is prohibited by the doctor.

The insurance company often knows where the injured worker is going to be. After all, the insurance adjuster is the one who makes doctor appointments and schedules medical tests for the injured worker. The private investigator could be waiting in any parking lot, shopping in the same pharmacy, or even sitting in the same doctor's office as the injured worker.

It is of extreme importance to stay within the restrictions that have been ordered by the authorized treating physician. Sometimes even an innocent movement can be distorted to make the injured worker look as if they are faking their injury. It is best to be cautious at all times. If the injured worker is photographed or caught on tape the claim for Workers' Compensation benefits may be seriously compromised.

For more information on surveillance of injured workers and any other questions that you have about Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-303-7770.

December 1, 2014

Don't Jeopardize Your Benefits

Even though your benefits may have begun for your Workers' Compensation claim, this does not mean that they are guaranteed to continue. There are many ways that an injured worker may lose his entitlement to benefits. As an injured worker, it is a good idea to educate yourself about how your benefits could be suspended, or cut off.

One way that an injured worker can lose his entitlement to benefits is by failing to report his or her Workers' Compensation claim promptly and in a timely manner. Even if you are unsure, you should speak with your supervisor or employer about your injury. In Georgia, if the claim is not reported before the one year anniversary from the date of injury, the right to benefits is lost.

jeopardize-benefits.jpgIf you fail to cooperate with your employer or your authorized treating physician, your benefits may be compromised. What does failure to cooperate mean? It does not mean that you have to do anything and everything that your employer tells you to do. It does not even mean that you have to agree with all your authorized treating physician's recommendations for medical treatment. For example, in Georgia you have the right to refuse recommended surgery. However, it does not mean that you can disobey the Workers' Compensation laws at random. It is often very difficult to know whether your choices are going to jeopardize your benefits, even when the issue seems simple enough.

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November 30, 2014

Presley v. Dalton Logistics: Extraterritorial Workplace Injury Issues

In this global economy, it is not uncommon for workers to contract with businesses in one state and then conduct work in another.
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Almost all work-related injuries in Georgia are going to fall under the Georgia Workers' Compensation Act. However, when a worker based in Georgia or working for a Georgia-based firm is injured in another state, that can complicate matters.

It's known as an "extraterritorial workplace injury," and the question of whether or not Georgia law will apply, as opposed to the workers' compensation laws of the state where injury occurred, will depend on several factors. The issue can be an important one, as states can vary with regard to interpretations of key definitions like "work-related" and "independent contractor," and may vary with regard to statutory limitations.

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