I. History and Purpose
Georgia enacted its original workers’ compensation law in 1920. The law was intended to redress the inequities and hardships that commonly occur when an injured employee had to prove negligence to recover damages. With the enactment of the law, employers in Georgia lost their defenses to common law actions and gained limited liability; employees lost their right to recover in common law and gained guaranteed income and medical benefits for work-related injuries.
The State Board of Workers’ Compensation administers the workers’ compensation law.
II. Coverage: Insurance Requirements
A. Who is Subject to the Law:
In general, every employer which has three or more full or part-time employees when in the state of Georgia is subject to the provisions of the workers’ compensation law. There are several classes of employers and employees to which the provisions of the workers’ compensation law do not apply. Those not subject to the law by statutory provision are railroad workers, farm laborers, domestic workers, employers of such employees; employees whose employment is not in the usual course of the trade, business, profession or occupation of the employer; and federal employees. An employee is any person that serves under any contract of hire or apprenticeship, written or oral, express or implied.
It has been held since 1923 that an independent contractor is not an employee subject to the provisions of the workers’ compensation law.
B. Accidents Outside of the State:
Georgia workers’ compensation law sets forth requirements which must be met before Georgia will have jurisdiction over an accident which occurs outside the state but would have been compensable had it occurred inside the state. The first requirement is that the contract of employment must have been made in Georgia. This requirement is absolutely essential to Georgia’s right to take jurisdiction over accidents arising outside the state. Either of two other requirements must also be met. The employee must be a resident of Georgia or the employer must have a place of business in Georgia. Georgia lacks jurisdiction over out-of-state accidents even if these requirements are met if the contract of employment, even though made in Georgia, is expressed to perform services exclusively outside the state.
C. Exclusiveness of Remedy:
The provisions of the workers’ compensation law provide the exclusive remedy against the employer available to an employee injured on the job.
D. Insurance Requirements:
Every employer who is subject to the provisions of the workers’ compensation law is required to ensure payment of benefits to injured employees.
III. Occupational Injury
Georgia law defines a compensable occupational injury as an injury by accident which arises out of and in the course of employment. An injury occurs by accident if it results from any event, other than a disease not flowing naturally from an injury rising out of and in the course of employment, a willful assault on an employee by a third person or the result of the employee’s own willful misconduct.
B. Rising Out of Employment:
An injury rises out of employment when it results from a risk which is reasonably related to the employment. Disability resulting from an intervening act independent of the injury is not compensable.
C. In the Course of Employment:
It is usually stated that an injury rises in the course of employment if it occurs during normal working hours at a place where the employee may reasonably be expected to be in the performance of his duties and while he is performing those duties or doing something incident thereto.
Injuries which occur while the employee is going to and from work are generally not compensable unless the employer furnishes transportation to and from work as an incident of employment, the employee is proceeding to and from a parking lot owned or furnished by the employer, the employer requires doing of acts beneficial to employer while the employee is traveling to and from work, or the employee is on-call basis and the employer reimburses the employee for the cost of transportation to and from work.
Injuries which are sustained while the employee is deviating from the duties of his employment and performing a personal mission of his own are not compensable.
E. Cardiovascular Injuries:
Cardiovascular disease in and of itself is generally not compensable. A heart attack is compensable if it results from the performance of the usual duties of the employee’s work.
Compensable hernias are extremely difficult to prove in Georgia. To be compensable, a hernia must:
1. Result from an injury
2. Must appear suddenly
3. Must be accompanied by pain
4. Must immediately follow an accident
5. Must not have existed prior to the accident
Death following an injury is compensable only if it results directly from the injury.
H. Self-Inflicted Exception:
Intentionally self-inflicted injuries are generally not compensable. A fact that suicide is an intentional inflicted act does not preclude compensability.
I. Changing Condition:
The term used to describe events which occur subsequent to an injury which affect the employee’s right to receive continued benefits is a change in condition. Certain standards have been established by the courts in determining what events constitute a change in condition. A change in condition for the better occurs when the employee’s condition changes in such a way that he or she is able to return to work and there is a showing of work available which will reduce or eliminate the employee’s loss of income. The available work must be suitable to the employee’s condition and must reasonably be accessible to the employee. An employer has the burden of proving a change in condition if the employee is not working, benefits are being paid, and the employer alleges that the employee is no longer entitled to receive benefits.
J. Aggravation and New Injury:
Georgia law provides that when an employee during the performance of his duties aggravates a pre-existing condition, there is a new injury. Difficulty comes in applying the principal and deciding what aggravation means.
Aggravation of a pre-existing condition by performance of the duties of employment is an injury by accident. This principal applies even if the pre-existing condition would be classified as a disease.
K. Super Added Injury:
A super added injury is a subsequent condition which develops as a result of the condition originally caused by the compensable injury. There must be a direct causal relationship between the original injury and the ultimate condition.
L. Non-Physical Disability:
A permanent partial loss of the use of the body as a whole does not have to be physical to be compensable. If a compensable injury results in a ratable psychological loss of function, that loss of function is considered to be a loss of use of the body as a whole and it is compensable.
There are two broad categories of benefits payable under the workers’ compensation laws. These two categories are income benefits and medical expenses. Income benefits are payable for various kinds of disability and for death. Medical expenses are recoverable including the cost of rehabilitation.
B. Eligibility for Benefits:
A worker does not become eligible for income benefits immediately after being injured. The injury must cause seven days of lost time from work before the worker is eligible for income benefits. If, however, the worker is unable to work because of the injury for 28 consecutive days at any time following the injury, income benefits for the first 7 days of lost time are payable.
Whatever income benefits are payable, the amount to be paid is based upon the injured worker’s average weekly wage. There are three methods provided by statute for calculating the average weekly wage. If the worker has been engaged in the same type of employment in which the injured occurred for substantially the whole 13 weeks immediately prior to the injury, the average weekly wages is 1/13 of the total earnings during that period. If the worker has not worked substantially the whole of 13 weeks immediately prior to the injury, then the average weekly wage is based upon the earnings of a similarly situated employee in the same type of employment who has worked substantially the whole of 13 weeks. If no such employee exists, then the average weekly wage is based upon a full-time weekly wage of the injured employee.
C. Income Benefits:
As long as the injured worker is unable to do any work because of the injury, he or she is entitled to income benefits based upon total disability. Benefits are paid in an amount equal to 66 2/3 percent of the worker’s average weekly wage, not to exceed the rate established at the time by the legislature. If the injured worker is able to do some work, but is not able to earn as much money as before the injury claim then benefits are payable for temporary partial disability. Income benefits for total and temporary partial disability are based upon economic loss rather than physical impairment.
When a disability becomes partial in character but permanent in quality, the injured worker becomes eligible for benefits based upon permanent partial disability.
D. Death Benefits:
If an injured worker dies after the injury as a result of a cause other than the injury, the liability of the employer insured to pay benefits ceases. If the death occurs as a result of the injury, the benefits are payable to the injured employee’s dependants.
E. Medical Benefits:
Even if an injured worker does not lose enough time from work to be eligible for incoming benefits, the employer is required to pay medical expenses which result from the injury that are reasonable and necessary to affect a cure or give relief to the worker’s injury. There is no limit on the amount of medical expenses payable in a workers’ compensation claim.
Georgia law requires an employer to post a list of at least three physicians,
professional corporations, professional associations or persons licensed to practice the healing art or authorized to treat employees of that employer for work-related injuries. An injured worker is allowed to make one change from one member of the employer’s panel to another member of the employer’s panel without first being authorized by anyone. Any further changes, or changes to providers other than those listed on the employer’s panel must be authorized by the employer and the State Board of Workers’ Compensation.
An employer does have a right to arrange for an independent medical examination of an injured worker at its expense at any time. The worker must be given at least five days notice of the appointment for the examination. Any expenses incurred in keeping the appointment must be paid for the employer. The right to have an independent examination on a one time basis is not related in any way to a change in physician or treatment. A change in physician or treatment requires the consent of the parties or approval of the board.
Georgia law requires the employer to pay the cost of necessary rehabilitation services as part of the injured person’s benefits. Rehabilitation is aimed at assisting an injured worker to live as normal a life as possible in spite of the injury and at restoring that worker to productivity in employment suitable to the worker’s impaired capacity, if possible.
G. Third Party Recovery:
Georgia law provides that an injured party may prosecute a third party claim.
H. Specific Third Party Actions:
Some of the most common types claims arise from factual settings of a workers’ compensation claim.
A defective product which produces a workers’ compensation injury may give rise to the following claims against third parties:
1. A claim founded on a strict liability
2. A claim founded on breach of implied or expressed warranty
3. A claim founded on negligence
If a motor vehicle collision causes injury there exists a possibility of a tort recovery.
If a worker’s injury is the proximate result of chemical exposure resulting, perhaps, in an occupational disease or traumatic injury claim under workers’ compensation law, the failure to properly warn could give rise to a claim against the chemical supplier.
I. Social Security Benefits:
Essentially the social security disability program pays benefits on behalf of disabled workers under 65 years of age. A worker becomes eligible after a period of employment covered by social security measured in calendar quarters.
A major consideration in this area is the offset provision provided by federal law for workers’ compensation benefits.
In addition to payment of medical benefits, a person receiving same may also be entitled to certain medical benefits as well.
J. Unemployment Compensation:
The general rule governing loss of wages and unemployment compensation is that ordinary workers may be entitled to one but not both simultaneously. To this end the law governing unemployment contains an offset provision against simultaneous receipt of unemployment benefits and benefits for temporary, total or partial disability.
V. Procedure to Obtain Workers’ Compensation Benefits
Workers’ compensation law contains various notice requirements for the employee. Failure to comply with these time limits may result in the denial of the claim for workers’ compensation benefits. It should be immediately determined whether the applicable statutory deadlines have been met.
B. Employee’s Notice to the Employer:
Georgia law mandates that every injured worker or representative must inform the employer or its agent of an on-the-job injury immediately upon its occurrence or soon after as practical.
Although the burden is on the employee to give an actual notice to the employer, the injured worker is not required to classify the injury from one arising out of and in the course of his employment.
C. Employee’s Notice to the Board:
Georgia law sets forth the one year statute of limitations generally applicable to on-the-job injuries or deaths attributed to such injuries. An employee’s right to compensation is barred unless a claim is filed with any of the board offices located throughout the state within one year from the date of the accident or death.
D. Time Limits for Medical Benefits:
Injured workers who have returned to work often require additional medical treatment. Once an injury is accepted by the employer as being compensable, the employer always remains liable for medical treatment unless there is a stipulation in the agreement regarding settlement.
E. Time Limitations for Income Benefits Based Upon a Change in Condition:
Prior to 1978 Georgia law mandated that any determination of a change in condition regarding entitlement to additional income benefits was barred unless brought within two years from the date the employer/insured notified the board of this final payment.
Georgia law was modified regarding a change in condition. A request for determination for a change in condition must now be brought within two years after the date of final payment of income benefits.
F. Payment by Agreement:
The parties can enter into a Stipulation and Agreement to settle all the issues. This still must be approved by the board before it becomes final.
G. Direct Payment:
A direct payment system requires the liable party to make prompt payment directly to the injured worker. This system purports to shorten the delay in payment of income benefits by eliminating an agreement which the board must approve. The workers’ compensation code requires payment to the injured worker within 14 days after knowledge of the injury or death and weekly thereafter.
The workers’ compensation code provides for a penalty for late payments unless late payment is excused by the board due to conditions beyond the control of the employer/insured.
If the board orders payment of benefits a penalty may be added for payments not made within 20 days after becoming due.
The board may authorize payments other than on a weekly basis. The employer/insured may take credit for overpayments of income benefits by reducing the period of payment or the amount of future benefits.
VI. Medical Only Claims
If an employer/insured only pays medical benefits, the only report required is a quarterly report of the total payment for medical expenses on a form furnished by the board. In the event an employee later loses more than seven days from work or dies as a result of the injury, the employer/insured must file an additional form clearly marked “medical only” in large print to avoid the imposition of a penalty for late filing.
VII. Changing Condition
The workers’ compensation code governs changes in wage earning capacity, physical condition and status of the claimant with respect to entitlement to income benefits. Ten days notice evidenced by the board’s date stamp affixed to the form filed with the board is required to be given a claimant prior to the termination of benefits with one exception. In the event an employee has actually returned to work, no notice is required to be given to the employee prior to the termination. Board rules require that the medical report used to justify a suspension benefit based upon ability to return to work without restrictions must come from the authorized treating physician.
In the event the suspension of benefits is due to a medical release to return to work, copies of all relevant medical information in this regard must be attached to the form which indicates benefits are being terminated and filed with the board. To challenge a unilateral suspension or failure to resume payment the claimant may request a hearing.
Any form evidencing termination of benefits which does not comply with the notice and other requirements except for the above will be deemed improper and will not be accepted by the board. Failure to give proper notice does not prejudice employer/insurer’s right to present evidence to justify the termination of that action if challenged. If the claimant challenges an unilateral termination of benefits based upon alleged ability to return to work, the burden is on the employer/insured to justify their action. If the challenge is to a failure to resume payment of benefits, the burden is on the claimant to prove entitlement to future benefits.
The workers’ compensation code mandates where income benefits are being paid the employee’s right to compensation cannot be denied except for a change in condition or newly discovered evidence, unless the denial is filed within 60 days of the due date of the first payment of income benefits. As a practical matter, this time limit equals 74 days from the date of the employer’s knowledge of disability or death.
The workers’ compensation code authorizes the employer/insurer to suspend income benefits during the refusal of an employee to accept employment suitable to his capacity, unless the board is of the opinion that the refusal was justified. The board is allowed to consider factors other than the employee’s physical capacity to do the work, such as suitability of the job to the employee’s interest and aptitude, the challenge involved in the job, and the opportunity for advancement, and determining whether refusal to accept offered employment is justified.
VIII. Change in Physician or Treatment
The workers’ compensation code provides for the selection of a physician by an injured employee from a panel of three or more physicians posted by the employer, or any other physician designated by the employer, or any physician if no panel is posted. An injured employee may change from one member of the panel to another without permission. Any other changes require agreement of the parties or board approval.
After all other efforts have failed, an employer/insurer or employee may make a request to the board for a change in physician. Any party desiring a change should write the board and furnish a copy to the other party. The request should include the name of the treating physician, the name and address of the physician desired and a detailed explanation of the reason for the change. After allowing an interested party 10 days to respond to the request, the board renders its decision. The board’s decision to grant or deny a request for a change in physician is an act of discretion.
IX. Notice to Controvert
A proper controversion, or denial of any claim for benefits occurs when the employer/insurer files a Notice to Controvert with both the board and the claimant within allowable time limits. A timely filing of a Notice to Controvert, an employer/insurer may avoid accessed attorney fees and the imposition of penalties. An employer/insurer’s action in controverting a claim is final unless challenged by a request for a hearing or other appropriate action.
X. Request for Administrative Hearing
Any claimant or his attorney may file a claim or request a hearing by using the forms provided by the board or by way of a letter. Usually an administrative hearing will be requested when benefits have been denied or medical attention prohibited.
XI. Request for a Review Before the Full Board
An appeal from the administrative law judge’s ruling is available by requesting an appeal before the full board. The full board will consist of a three member board of review which will decide any issues appealed regarding the administrative law judge’s decision. All arguments or request for a three member board review is available, but only if requested by the party seeking the review. The request for oral argument must be filed at the time of the filing the application for review. When requested, all argument is limited to five minutes per side.
The board does not hear additional testimony and only receives additional evidence in the exercise of its discretion in according with the law and the board rules. If the board wishes to receive additional medical evidence, it must remand the claim to an administrative law judge to receive the evidence subject to cross-examination and rebuttal. The three board panel award becomes final unless appealed to the Superior Court within 20 days.
XII. An Appeal to the Superior Court
An appeal to the Superior Court is available after the decision of the full board. This appeal may be in the form of a letter or formal petition. In any event, the notice shall set forth at least one of the five statutory basis for appeal to the Superior Court pursuant to the workers’ compensation laws. Proper venue for a Superior Court appeal is the county where the injury occurred. Georgia law provides that any appeal from a full board award acts as a supercedes to any action required of an employer pursuant to that award if the employer has complied with the insurance provisions of Georgia law.
XIII. Further Appeals
Beyond the Superior Court level, appeal of a workers’ compensation claim is a matter of judicial discretion, not a matter of right. This has been true since July of 1979 when the current legislation became effective. The appellate process requires that an application for discretionary appeal not the actual appeal itself be filed by the aggrieved party with the Clerk of the Court of Appeals within 30 days from the date of the Superior Court order. The respondent may reply to the application with 10 days. The Court of Appeals then reviews the application and to determine whether to grant or deny the appeal.
Appeal to the Supreme Court of Georgia or the Supreme Court of the United States from a party aggrieved in a workers’ compensation claim is by application for Writ of Cercorai.