March 3, 2015

Thomas v. 5 Star Transportation - Fatal Work Crash, Common-Law Spousal Entitlement, Disputed

When it comes to workers' compensation law, states have varying applications with regard to disputed issues. In general, though, what must be proven is the injury or illness was caused or compounded by work-related duties or functions, and that the individual seeking to collect has legal standing to do so.
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A recent case before the South Carolina Court of Appeals posed some interesting issues with regard to these elements, but the claimant still prevailed.

In Thomas v. 5 Star Transportation, claimant was the widow of a worker who died in a traffic accident while driving a tour bus for his employer. But the case was complicated by two central facts:


  • The worker had suffered a brain aneurysm around the time of his death, though it could not definitively be proven it happened before the crash.

  • The woman who sought spousal benefits was not in fact married to decedent, as his divorce to his previous was not final at the time of their wedding - a fact she didn't learn until after he died.


Yet, claimant was able to succeed in securing workers' compensation death benefits, but it didn't come without a vigorous fight by the employer.

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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 22, 2015

Moore v. K-Mart Corp. - Treatment for Toxic Metals Exposure Compensable

A woman who became ill as a result of exposure to toxic heavy metals while working to restore furniture for a large chain store was recently awarded compensation for necessary treatments at her doctor's office.
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In Moore v. K-Mart Corp., the West Virginia Supreme Court took the unusual step of declaring a law invalid for its direct contravention to the underlying purpose of state workers' compensation benefits law.

The primary issue was not whether the illness was work-related. No one disputed it. The issue was not the extent of injury. All agreed it was severe. In fact, no one even argued the treatment she was receiving wasn't medically necessary or reasonable. The core of the dispute was the place in which she was receiving this particular type of treatment.

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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 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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