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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October 1, 2014

Marta v. Reid - Late Payments in Workers' Compensation Claims

The Georgia Legislature recognized that when workers are injured on-the-job, they are entitled not only to receive adequate compensation, but also to obtain those benefits in a timely manner. In order to give employers incentive to comply, lawmakers passed a provision of OCGA 34-9-221 that allows for injured employees to seek the imposition of statutory penalties for late benefits payments.
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Specifically, the law states benefits must be paid weekly, with the first becoming due on the 21st day after employer has knowledge of injury or death and has to be paid via electronic transfer. Payments that are not paid when due automatically accrue a 15 percent late penalty. Payments that are more than 20 days late accrue a 20 percent late fee.

These late penalties are payable not to the state but directly to the injured worker. However, that injured worker needs to file a claim for benefits, and it helps to have an experienced workers' compensation lawyer. Also, it's important to make those claims within a timely fashion. Otherwise, as the recent case of Marta v. Reid illustrates, the opportunity may be forever lost.

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September 28, 2014

Burkhart v. H.J. Heinz Co. - Asbestos Injury Deposition Inadmissible in Workers' Comp Case

If you have been injured in the course of your employment, generally the only compensation you can receive will come from your workers' compensation insurance. However, there are third-party liability exceptions. One of the most common examples is third-party toxic tort lawsuits against manufacturers who produced products containing asbestos.
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Throughout the 20th Century, asbestos was in everything from floor tiles to insulation to piping. While many workers were unaware of it, those manufacturers knew how dangerous the asbestos was and yet failed to warn companies and their workers of those dangers.

Because of the latent nature of asbestos-related diseases, which typically don't manifest until several decades after exposure, we are only just now seeing the effect on workers today - many of whom might already be retired. Although the statute of limitations would generally bar claims filed so long after the injury occurred, time is often tolled in asbestos cases out of consideration for the fact the worker was unaware he or she was injured until decades after exposure. Because of the complex nature of occupational cancer cases, it's important to consult with an experienced Atlanta workers' compensation lawyer as soon as possible to explore all options.

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September 21, 2014

Reed v. Malone's Mechanical - Third-Party Claims Must Be Comprehensive From Start

A recent third-party liability claim stemming from a work injury failed because plaintiff did not name all potential defendants soon enough in the process.
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While this oversight seems obvious in hindsight, the reality is identifying all responsible parties, particularly on a multi-employer work site, can be challenging. Our Atlanta workers' compensation lawyers are experienced in conducting thorough investigations at the outset of the case, and continuing our exploration of the case in consideration of deadlines as facts become available.

Workers' compensation serves as an exclusive remedy to workers who are hurt on the job. But that exclusive remedy provision is applicable only to employers. Uutside of wanton disregard for worker safety, workers' compensation is the only means of collecting damages. The exception would be if a third-party is responsible, which was the assertion in the recent case of Reed v. Malone's Mechanical, Inc., et al. before the U.S. Court of Appeals for the Eighth Circuit.

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September 14, 2014

Hayes v. Rosenbaum Signs - Employer Can't Take Inconsistent Positions on Work Injury Claim

Our Atlanta work injury lawyers expect employers to challenge workers' compensation claims on the grounds that they weren't actually caused by job duties. We also sometimes anticipate challenges to ongoing benefits, based on argument the underlying work injury has largely healed and other conditions have come into play.
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However, in the recent case of Hayes v. Rosenbaum Signs, the employer initially agreed to cover medical costs. But then the employer stopped. When the worker filed a petition, the employer conceded the worker's job was a major contributing factor to his need for medical treatment. The case was dismissed. A year later, the employer again denied treatment, this time based on an evaluation by a new doctor indicating the original injury was likely not work-related.

Ultimately, the South Dakota Supreme Court was asked to weigh in the matter, and decide whether the employer was judicially estopped from taking this kind of inconsistent position.

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September 7, 2014

Whigham v. Jackson Dawson Communications - Kickball Game Injuries Compensable

Sport's injuries are not typically covered under worker's compensation insurance. But as our Atlanta workers' compensation lawyers have come to know well, there are always exceptions.
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A perfect example of this was highlighted recently in the case of Whigham v. Jackson Dawson Communications, weighed by the South Carolina Supreme Court.

The crux of this decision was whether injury occurred in the course of a work-related duty. As a marketing manager, the claimant was not in the business of professional kickball. However, as part of his employment, according to court records, he was required to attend twice-monthly meetings at which managers discussed, among other matters, the importance of team-building activities.

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August 25, 2014

Harris v. Millennium Hotel - Same-Sex Partnership and Workers' Compensation Benefits

Workers' compensation benefits are intended to aid an employee and his or her dependents in the event serious injury or death arises in the course of job-related functions.
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Generally, for purposes of benefit collection, "spouses" are defined under workers' compensation law as individuals married to injured workers. Usually, live-in boyfriends and girlfriends are excluded from receiving workers' compensation benefits. But what if the couple is precluded by law from marrying?

Georgia, like many other states, has implemented a same-sex marriage ban that forbids homosexual couples from being married. The legislature banned it in 1996, and a constitutional amendment underscoring the same was passed in 2004.

Still, our Atlanta workers' compensation attorneys recognize there may be some hope for homosexual couples in this regard, given the recent precedent set by the U.S. Supreme Court's determination that the Defense of Marriage Act (DOMA) was unconstitutional, as well as the Alaska Supreme Court in Harris v. Millennium Hotel.

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August 20, 2014

Gregory v. Cott - Workers' Compensation Exclusive Remedy for Some Injured Health Workers

Health care workers, including those who provide in-home care, are at high risk for violence on the job, especially when working with patients suffering from dementia, accompanied by aggression.
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However, these workers may have difficulty securing damages from the patient and/or the patient's family if injured in an attack by the patient. In many of these cases, our Atlanta workers' compensation lawyers recognize workers' compensation benefits are likely to be the only remedy.

The recent case of Gregory v. Cott, decided recently by the California Supreme Court, illustrates the issues.

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August 10, 2014

Cruz v. Workers' Compensation Appeal Board - Court Weighs Proof Burden for Injured Undocumented Workers

It's been well-established by courts across the country - including Georgia - that undocumented and illegal immigrants who sustain work injuries are entitled to collect worker's compensation insurance benefits from their employer.
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Further, our Atlanta workers' compensation attorneys know that one of the key hurdles in any work injury claim is proving the worker has been unable to obtain gainful employment since the injury and proximately as a result of the disability.

What the Pennsylvania Supreme Court recently ruled in a split decision in Cruz v. Workers' Compensation Appeal Board, where the employer sought to cut benefits to an injured, undocumented worker, was that the employer had the burden of proof with regard to the assertion that the worker was unable to find work because of his undocumented status, rather than his work injury. Additionally, the court found the worker's invocation of his Fifth Amendment right against self-incrimination during a hearing before the state worker's compensation board didn't constitute substantial evidence of the worker's alleged lack of legal status to work in the U.S.

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August 1, 2014

Higginbotham v. WSI - Disputing Conclusions of Vocational Rehabilitation Report

In Georgia work accidents, employees who have suffered injures that are not considered catastrophic may be entitled to vocational rehabilitation. This is a service offered when a worker is no longer able to perform his or her previous job, but may still be able to do some type of work after some additional help to enter that field.
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The employer may have to pay for this service if the workers' compensation board or court orders it. Workers don't necessarily have to participate, but should know they risk a reduction or elimination of benefits if they don't, under O.C.G.A. 34-9-200.1.

Workers should know too that reports from vocational consultants can potentially impact their ability to collect benefits if it is determined they are able to perform other types of jobs, even if they can no longer do the work they previously did. Having an experienced Atlanta workers' compensation lawyer to help dispute the conclusions of these reports in some cases can help preserve your entitlement to benefits.

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July 30, 2014

Hanik v. Christopher & Banks, Inc. - Courts Wrestle With Compensability of Parking Lot Fall

In determining whether an injury is covered by workers' compensation, three general factors are considered: The zone of employment, whether the injury is work-related and the coming-and-going rule.
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Every state has its own workers' compensation laws and interpretation of case law regarding what is considered "work-related," if an employee is coming-and-going and whether the incident occurred within the zone of employment.

With regard to the latter, our Atlanta workers' compensation lawyers recognize typically, the zone of employment is considered to be limited to the facilities, the parking lot and any sidewalks that are owned and/or controlled by the employer. However, this issue is not always a straightforward determination, as evidenced by the recent case of Hanik v. Christopher & Banks, Inc., weighed by the Kentucky Supreme Court.

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July 23, 2014

Study: Undocumented Workers Face Danger on the Job

A study conducted recently by a team of researchers with Cornell University and Penn State University reveals that undocumented Mexican workers receive no wage premium for working in hazardous conditions, whereas most other groups do.
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The study, The Occupational Cost of Being Illegal in the United States: Legal Status, Job Hazards, and Compensating Differentials, published in the journal International Migration Review, indicates these workers receive low or no compensating differential, despite working in fields where the fatality rate, exposure to toxic materials and the risk of falls is high.

Our Atlanta workers' compensation lawyers know that employers of undocumented workers take advantage of the fear that any reporting of work injuries might result in potential deportation.

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July 15, 2014

Attorneys: Lawsuit to be Filed in Fall-Related Work Accident

There was a time when the shared dream of eight acrobats was to be star performers. Now, they say, they dream of the day when they will be able to stand up out of their wheelchairs and walk. circusintown.jpg

The crew members were severely injured in a horrifying accident while performing for a circus show in Rhode Island in May. As they struggle to regain basic mobility, our Atlanta workers' compensation attorneys understand that a law firm representing them has promised litigation, though it will not be against their direct employer.

That's because workers' compensation is what is known as an "exclusive remedy." This is true in Rhode Island, and it's true here in Georgia and across the country. Essentially, this means the employer whose workers' compensation insurance covers work-related injuries and illnesses can't be sued by the worker for those ailments. Those benefits are considered the only means of redress against the company, no matter how negligent the firm may have been in failing to prevent the incident.

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