How to handle Georgia workers’ compensation after a tree trimmer accident
Do you or a loved one work for a tree removal, care or cleanup company?
Tree trimmer jobs are very dangerous and quite often deal with many different aspects of workers’ compensation law, from notice to statutes of limitations and even employment status.
In this article we will explore how workers’ compensation is handled for individuals employed in a tree removal and cleanup business. We’ll also talk about common dangers of the job, common injuries, common defenses after an injury and remedies that can be achieved.
Tree care safety: how to prevent tree care accidents and injuries
The tree removal business is an extremely dangerous job. Elements of height, limbs unexpectedly falling and other variables from Mother Nature make performing tree removal a perilous proposition.
It’s important to note that the trimming and removal of limbs are not the only risky part of this job. Working around wood chippers and fallen tree limbs also puts workers in hazardous positions subjecting them to injury. These dangerous activities aren’t performed in a vacuum, either. Often, they are done in bad weather and/or emergency situations, which heightens the danger.
The first rule of working in the tree removal industry is to follow all safety protocols and procedures. Often, the use of safety devices are required. Make sure to follow all rules and regulations.
The OSHA infographic lists the following hazards as the most dangerous for tree care workers:
- Traffic control
- Drop zones (falling trees/limbs)
- Wood chippers
- Aerial lifts
- Power lines
Willful misconduct and denial of workers’ compensation benefits
Not only does failure to follow safety protocols increase your risk of injury, but it can also prevent you from recovering benefits through workers’ compensation. In such cases, your employer can use the defense of “willful misconduct.”
Willful misconduct is covered by O.C.G.A. 34-9-17. It states that:
“No compensation shall be allowed for an injury or death due to the employee’s willful misconduct…for the willful failure or refusal to use a safety appliance or perform a duty required by statute.”
This is an affirmative defense that needs to be asserted by the employer/insurance company. Just a failure to use a safety appliance doesn’t rise to the level that will allow denial of the claim. There has to be an actual willful act of misconduct for this rule to apply. It has to be more than negligence, or even gross negligence.
Even though this is a very high burden to prove, it doesn’t discourage employers to commonly assert this defense. It’s important to contact an attorney so they can work with you in defeating a willful misconduct defense.
Independent contractors and your workers’ comp rights
Another common defense used against employees of tree removal companies is that they are independent contractors, and not actual employees. Many tree company employees are paid via a Form 1099, meaning no taxes are taken out and the employer calls them independent contractors.
The determination regarding who is an employee and who is an independent contractor is a question for a judge. The judge will weigh all of the evidence in making a decision on this issue. The Georgia legislature and courts have set up a test to determine how to classify an individual.
Please note that the test to determine the status of an employee is not based on fulfilling one specific factor of the list, but rather all circumstances are taken into account and weight given to different factors depending on the facts.
- Was there a contract written that expressed the intent of the parties to classify the injured worker before the incident took place?
- Who has control over the time, manner and method of the work that is to be performed?
- Is the individual paid by the job, a salary, hourly, etc…?
- Was the individual recently hired?
- Does the employment agreement have a definite beginning and end?
- Who furnishes tools and equipment for the job?
- Does the job require certain skills?
- Who is in charge of setting the hours of the worker?
- Does the individual employee have control over their work, or does the employer have control?
- Is the business of the individual different than that of the employer?
- Is the individual free to work for other individuals at the same time (no exclusivity)?
- When the individual is paid, are taxes withheld or not?
- Does the individual have to perform work without additional pay?
Common types of tree care industry injuries
Getting injured while working for a tree service can result in serious injury. Hopefully, the injured individual is properly treated immediately and sent to a hospital via an ambulance.
Unfortunately, not all employers are good actors, and sometimes they refuse to send injured workers to receive medical care when they are hurt on the job — or they insist on having a drug screen performed before medical treatment. There is nothing in Georgia’s workers’ compensation statute that requires this.
Tree trimming accident statistics
The Tree Care Industry Association reports that of the 153 tree care-related occupational incidents in 2016, 92 (over 60 percent) of them were fatal and 45 resulted in “serious injury.” This fatality rate is significantly higher than in other industries, despite recent actions taken to improve safety in the field.
Such troubling statistics have even caught the attention of officials at the Occupational Safety and Health Administration (OSHA), who have launched “special emphasis” programs in many states targeted at tree care and landscape firms.
The first type of injury is probably the most obvious — they get hurt climbing up the tree, or falling down once up. These can result in very serious impact injuries such as head, brain, neck and back damage.
The second type of injury we see is from those on the ground. These workers either get hit by a falling branch, or are injured while trying to prevent a limb from falling off a tree. Often, these involve back injuries and shoulder/rotator cuff injuries due to the amount of weight that becomes suddenly thrust on the ground worker and the torque that is put on their body. Sometimes the injured worker doesn’t feel an immediate injury, but wakes up in excruciating pain the next day.
The third type of tree care/removal injury we often see is from people who are working to help set up or clean up from a job site. There are commonly many obstacles when cleaning a tree removal job site. Some hazards can be hidden and cause serious injuries to workers. Sometimes, these tree removals are being performed in dangerous conditions, such as after a storm or where a tree fell over.
When to contact a Georgia worker’ compensation lawyer
It’s important to contact an attorney after being injured on a tree removal job. Know your rights so you can ensure that you receive every protection provided under the law.
If you have any questions, don’t hesitate to contact the experienced Atlanta workers’ compensation attorneys at Gerber & Holder. We have worked with numerous clients who have been injured while working for a tree removal or tree care company. Let us use our knowledge of the industry and workers’ compensation law to help secure your benefits.