Answers to common questions about Georgia workers’ comp benefits, laws and more
So you’ve been hurt on the job. The last thing you want to think about right now is the technicalities of your state’s workers’ compensation law. While you should talk to an experienced lawyer as soon as possible, it benefits you to understand your basic rights when it comes to workers’ compensation in Georgia.
Below are some of the most common questions about workers’ compensation law.
While these may provide a guide for you, there may be many complicating factors with your claim. Contact a lawyer at the downtown Atlanta, Georgia law firm of Gerber & Holder for your free consultation.
Georgia workers’ comp FAQs
- What is workers’ compensation?
- Am I covered under Georgia’s workers’ compensation law?
- Do I really need an attorney?
- The insurer wants to settle my case and to set up a Medicare Set-Aside account. What is that?
- I haven’t returned to work but my weekly benefit checks have been reduced. Can they do that?
- Do I have to remain in Georgia in order to get workers’ compensation benefits in my claim?
- I am receiving the maximum amount of Georgia workers’ compensation benefits in my case. Am I eligible to have my benefits increased if the maximum benefit limits increases under the law?
- Am I personally responsible for my medical bills?
- When can the insurance company stop my benefits?
- I am applying for Social Security Disability benefits. If I get them, will they be reduced because I am receiving Georgia workers’ compensation benefits?
- I think someone from the insurance company is watching me. Can they do this?
- Can I be fired while on workers’ comp?
- Can I move out of state while receiving workers’ comp benefits?
- Can I receive workers’ comp benefits and apply for unemployment benefits?
- Can I be fired for making a workers’ compensation claim?
- Are workers’ compensation payments taxable?
- Can you get pain and suffering from workers’ comp?
- Do professional athletes get workers’ compensation?
- Is travel to work covered under workers’ compensation?
- Can you work while receiving workers’ compensation?
- Is workers’ compensation required for independent contractors?
- Can I refuse surgery or medical treatment under workers’ comp?
- Does workers’ compensation include overtime?
- Can you sue after workers’ comp? Can you sue your employer after you settle your workers’ compensation case?
- When can I get an attorney for workers’ comp?
- Who can be excluded from workers’ compensation?
- How are unemployment insurance and workers’ compensation alike?
- When is it too late to file for workers’ compensation?
- What is a nurse case manager?
- What can I do if my employer doesn’t have workers’ compensation coverage?
- When can workers’ compensation insurance cut off my benefits?
- What is the Affordable Care Act and how can it benefit our clients – both former and perspective?
- Why can’t I see and get treatment with my own personal doctor when I get hurt on the job?
- What happens if my employer either goes bankrupt or goes out of business during my workers’ compensation case?
- What happens if the insurance company declares bankruptcy during my case?
What is workers’ compensation?
Workers’ compensation is a type of insurance that provides financial benefits for medical expenses, lost wages, and rehabilitation costs to employees who are injured or become ill in the course and scope of their employment. It also pays death benefits to families of employees who are killed on the job.
The workers’ compensation system was developed to provide speedy payment of income benefits and medical bills without the necessity of proving fault on behalf of the employer, co-workers or third-parties. Usually the employer purchases a workers’ compensation insurance policy that will pay these benefits.
To learn more, see our Guide to Workers’ Comp Benefits.
Am I covered under Georgia’s workers’ compensation law?
In general, if your employer has three or more employees and you were injured performing a task that arose out of, and in the course of your employment, you will be covered under workers’ compensation law in Georgia.
Do I really need an attorney?
Enforcing your workers’ compensation rights at times can be a challenging situation. Complicated forms and procedures must be followed. It’s often wise to have an attorney to represent you because of the many factors needed to win your case. Our decades of experience have taught us how to help secure the maximum amount of benefits for our clients.
Was your workers’ comp denied? Find out why your claim may have been denied.
The insurer wants to settle my case and to set up a Medicare Set-Aside account. What is that?
A Medicare Set-Aside account (or MSA) is used when you’re eligible or it appears you will be eligible for Medicare as a result of receiving Social Security Disability Income benefits. Medicare isn’t supposed to pay for treatment that you have received as a result of your injury. The amount of the MSA is an estimate of how much your future medical treatment that Medicare would otherwise pay would cost.
After settlement, you must place the money for the MSA into a separate account to be used only for payment of medical treatment and related expenses arising from your work injury. Your failure to properly use this money and account for it can result in a denial of Medicare benefits for other non work-related medical treatment.
I haven’t returned to work but my weekly benefit checks have been reduced. Can they do that?
It depends. If your doctor has released you to light-duty work and if the insurer complies with the many technical requirements of the law, your benefits can be reduced from temporary total to temporary partial, but only a year later. We would need to see all of the paperwork to give you an accurate answer.
Do I have to remain in Georgia in order to get workers’ compensation benefits in my claim?
No. You can continue to receive your weekly benefits no matter where you live. In addition, the insurer must provide you a doctor convenient to your new residence.
I am receiving the maximum amount of Georgia workers’ compensation benefits in my case. Am I eligible to have my benefits increased if the maximum benefit limits increases under the law?
No. You are locked into the maximum amount of weekly benefits in effect on the date of your accident.
Am I personally responsible for my medical bills?
Not if you have an accepted claim and if you have seen the authorized treating physician. Georgia law prohibits the medical provider from billing you for such services.
When can the insurance company stop my benefits?
That’s a complicated question. There are limits to how long you can receive benefits. Without regard to these time limits, there are essentially three situations in which the insurer can stop your temporary total benefits without going to the State Board of Workers’ Compensation for permission. (There are many other situations in which the State Board can suspend benefits.)
- If the authorized treating physician returns you to work on regular duty with no restrictions.
- If you return to work making the same amount of money as you were making when you were hurt.
- If the insurer follows the procedure set forth under O.C.G.A § 34-9-240 and Board Rule 240 concerning offering you light-duty work and you don’t try to do it.
I am applying for Social Security Disability benefits. If I get them, will they be reduced because I am receiving Georgia workers’ compensation benefits?
Perhaps. The total of your workers’ compensation benefits and your Social Security Disability benefits cannot exceed 80 percent of your average monthly or current earnings. Usually, when your workers’ compensation case is settled, the documentation of the settlement agreement can be drawn so as to recoup a large portion of this lost offset.
I think someone from the insurance company is watching me. Can they do this?
Yes. It’s legal for an insurance company to perform surveillance. The insurance company in your case is likely trying to see if your restrictions are less than what you and your doctor say. Avoid doing any strenuous activity outside. The insurer will try to make it look like there’s nothing wrong with you. While you may be able to bend over and pick something up once, this doesn’t mean that you can do it all day. They may make a videotape that may be very misleading. Be smart and protect your rights in your case.
Can I be fired while on workers’ comp?
This is a common question that many clients ask us. There is a simple answer and a more in-depth answer. I will provide both here. The simple answer is:
Yes, you can be fired while on workers’ compensation. You are not protected from termination because of a work-related injury. Your employer has the option to keep you employed or fire you even while you are getting medical treatment and/or indemnity benefits through workers’ compensation.
The more complicated answer is that your employment status after an on the job injury becomes an integral part of your case. When you are hurt on the job and receive work restrictions from an authorized treating physician, the employer must be able to accommodate those work restrictions by offering you a job within those limitations or you are eligible to receive weekly checks, (called indemnity benefits), from the workers’ compensation insurance carrier. Once you start receiving indemnity benefits, you are entitled to a number of rights under the workers’ compensation statute, such as an independent medical evaluation with a doctor of your choosing paid for by the insurance company.
Therefore, it may benefit your employer to keep you employed during your workers’ compensation case. In fact, you may not be fired during your workers’ compensation case for those reasons. Your employer may create a light duty job for you, such as answering phones or filing papers, which was different from the job you were either hired for, or the job you were performing at the time of your injury. This may just be a temporary job and it may end even though you still have restrictions in which case you will be entitled to indemnity benefits. Your employer may also terminate you as soon as the doctor releases you back to normal duty work.
In short, you are not legally protected from termination while you are eligible for workers’ compensation, but practically you may be. Please don’t hesitate to contact an attorney at Gerber & Holder to discuss your rights further.
Can I be fired for making a workers’ compensation claim?
Yes, you can be fired for making a workers’ compensation claim. Georgia is an employment at-will state, meaning unless you have an employment contract or are the victim of discrimination, you can be fired for any reason. The Georgia legislature rejected a bill preventing such firing for making a claim many years ago.
Your termination can be significant, however. If you are on regular duty work with no restrictions and you’re fired, then you will not be entitled to further temporary total benefits unless a doctor later said that you had some restrictions or that you couldn’t work. On the other hand, if you have some restrictions when you are fired, you may be entitled to workers’ compensation benefits.
If you were fired for reasons related to your workers’ compensation claim, your temporary total benefits should start immediately and you need not seek employment.
If it’s not apparent that you were fired for making the claim, you will probably need to look for work and prove that the reason that you couldn’t find work was on account of your workers’ compensation claim and the lingering effects of your injury. If you can prove this, then you would be entitled to temporary total benefits.
While you have no claim under Georgia law for being terminated, you may have rights under the federal Americans with Disabilities Act or other federal laws.
Can I move out of state while receiving workers’ comp benefits?
Can I receive workers’ comp benefits and apply for unemployment benefits?
Are workers’ compensation payments taxable?
No, no, no. A million times no. Let me be crystal clear, neither workers’ compensation benefits, nor workers’ compensation settlements are taxable.
To determine a workers’ compensation rate, one takes the injured workers’ gross wages from the thirteen (13) weeks prior to the accident and divides by the number of weeks worked. Once you have that number, you multiply it by ⅔. This process of taking only 66% of your salary is the way that the workers’ compensation system accounts for taxes. You never have to pay taxes on any benefits you receive under workers’ compensation.
Even if you do not receive weekly checks from workers’ compensation and only receive a lump sum settlement for your injury, you are never taxed on this amount. This does not mean that benefits are exempt from child support and bankruptcy proceedings, it only means that YOU ARE NOT TAXED ON ANY BENEFITS YOU RECEIVE UNDER WORKERS’ COMPENSATION.
Can you get pain and suffering from workers’ comp?
No, you cannot get pain and suffering for your workers’ compensation injury.
Workers’ compensation is a no-fault liability system. This means that you can get workers’ compensation benefits no matter whose fault the accident is. An injured individual is entitled to both medical treatment paid for by the workers’ compensation insurance carrier and indemnity benefits, wage replacement if you have been taken out of work by the authorized treating physician or been placed on light duty restrictions by the authorized treating physician and your employer cannot accommodate them, even if they caused the accident.
Unfortunately, even if somebody else causes the accident through their negligence, you are not entitled to pain and suffering through workers’ compensation. You may have a third-party case if the person that caused the accident worked for another party, but you cannot recover pain and suffering in a workers’ compensation setting.
There are four types of benefits you can recover in workers’ compensation.
- Indemnity benefits – wage replacement while you are out of work
- Medical treatment – all medical treatment requested by the authorized treating physician relating to your on-the-job injury is to be paid by the insurance carrier
- Permanent partial impairment rating – The authorized treating physician will assign a rating to you. This rating is based upon what permanent damage you have as a result of your on-the-job injury.
- Assessed attorney’s fees – These are fees that go directly to the attorney and are paid by the insurance carrier in the event that their defense is unreasonable.
In summation, there is no recovery for pain and suffering in workers’ compensation.
Do professional athletes get workers’ compensation?
Yes, professional athletes are employees of their respective team and treated just like any worker under the Georgia workers’ compensation system. If they are out of work because of an on the job injury, they are entitled to indemnity benefits, (wage replacement), medical treatment paid for by the insurance carrier at no cost to them and a permanent partial impairment rating when they have reached maximum medical improvement.
Furthermore, if they are not able to perform their job because of an on the job injury and subsequently earn less in a new job because of said injury, they may be entitled to permanent partial disability benefits. All workers are entitled to this, not just athletes, but athletes can provide good examples of this.
For instance, let’s say that a professional basketball player was earning a million dollars a year. During a game, he tears his achilles tendon and is no longer able to play professionally. He subsequently becomes a P.E. coach at the high school where he was a star, earning significantly less. This former professional athlete would be entitled to medical care on his achilles for up to 400 weeks and also temporary partial disability benefits. To calculate disability benefits, subtract his pre-injury wage with his post injury wage and then take two thirds of that. This number is capped at $450.00 as of July 1, 2019. If the professional athlete could be entitled to these benefits for up to 350 weeks from his date of accident forward.
Is travel to work covered under workers’ compensation?
An injury is deemed compensable under workers’ compensation if the individual who was hurt was performing duties within the scope and course of their employment. The courts in Georgia have long held that the scope of employment who travels is much wider than a typical employee. If an employee has to travel for work, they may be considered to be under continuous employment. This employment includes not only time spent doing work, but also time spent away from home that is required by their employment to lodge and work within a geographic area necessitated by work for the employer.
This means that if you are injured in, say, a motor vehicle in a city that you had to be in for work, but you were not technically working at the time, you may be eligible for workers’ compensation benefits. Please contact a lawyer at Gerber & Holder to discuss the details of your injury in greater detail.
A question that is often posed to us at Gerber & Holder deals with getting injured while traveling to work. The answer is a bit complicated and it depends. Here are a number of questions that have to be asked to determine if the injury will be treated as a workers’ compensation case.
- Did the company require you to drive to a location that was not their principal place of business? If so, it may be a work-related injury.
- Did your employer provide you with a vehicle as part of your job? If so, it may be a work-related injury.
- Were you driving back to the office from an errand they asked you to run? If so, it may be a work-related injury.
- Did your employer ask you to pick up a co-employee on the way to work? If so, it may be a work-related injury.
- Were you driving between jobs for the same employer? If so, it may be a work-related injury.
- Where you in a hotel in a different city as required by your employer when you were injured? If so, it may be a work-related injury.
As you can see, there are many different instances where getting injured while traveling is covered by workers’ compensation.
Can you work while receiving workers’ compensation?
This is a question that we often hear during our client’s cases. There is no simple answer. The best advice is to contact a workers’ compensation lawyer with regard to your specific case. However, I will provide you with a few different scenarios where receiving workers’ compensation benefits is both prohibited and allowed.
The typical answer is that you cannot both receive workers’ compensation benefits and work. This generalization is a safe guide, but it is not true in all cases. An instance where it is true is if you had one job at the time of your injury and the doctor has taken you completely out of work for that injury. During the period of time you are receiving temporary total disability benefits, you cannot work. In fact, it is fraud to receive workers’ compensation benefits and work under this scenario.
However, if an individual had two jobs at the time of their accident and those jobs were not similar, they can receive workers’ compensation benefits and work. For example, if an individual worked as a janitor at night and a bus driver during the day. Each job requires one to do separate and unique tasks. If someone hurts their shoulder while working as a janitor but could still drive a bus, they could work and receive workers’ compensation indemnity benefits.
There are also scenarios in which you may be required to work while you are being paid workers’ compensation benefits. If a doctor has placed an individual on work restrictions, but the employer cannot offer the same wage to the employee even though they can offer them a job, then they may be entitled to temporary partial disability benefits. This figure is calculated by taking two-thirds (⅔) of the difference between their pre injury average weekly wage and their current paycheck each week.
As you can see, there is no simple answer as to whether or not you can work and receive workers’ compensation benefits. The best thing to do is to contact us at Gerber & Holder and we will work with you to help determine what you can and cannot do.
Is workers’ compensation required for independent contractors?
An area that is hotly contested in the workers’ compensation arena revolves around independent contractors. The question essentially boils down to this: Was the injured individual an employee and therefore covered by a workers’ compensation policy, or are they truly an independent contractor in which case, they are not covered. This issue arises fairly often in the construction and contractor fields.
Workers’ compensation coverage is required of employers who have three or more employees. Under Georgia law, the question becomes, what is an employee? An employee is defined as an individual who is employed by another usually for wages or salary in a position below the executive level. An independent contractor is defined as an individual who is hired to do work, yet the hired person maintains control of how the work is done.
The statements or classification of an individual by an employer does not mean that person is an independent contractor under the eyes of the law. The Georgia legislature and courts have set up a test to determine: Just because an employer states that an individual is an independent contractor does not make it so.
Here are thirteen factors, taken from Kissiah’s Workers’ Compensation Law treatise that help define whether an individual is an employee or an independent contractor. Please note that the test to determine the status of an employee is not based on fulfilling one specific factor of the list, all circumstances are taken into account.
- Was there a contract written that expressed the intent of the parties to classify the injured worker before the incident took place.
- Who has the control over the time, manner and method over the work that is to be performed?
- Is the individual paid for by the job, paid a salary, hourly, etc.?
- The individual was recently hired.
- The employment agreement has a definite beginning and end.
- Who furnishes tools and equipment for the job?
- Does the job require skill?
- Who is in charge of setting the hours of the worker?
- The individual has control over employees, or the employer has control.
- The business of the individual is different than that of the employer.
- The individual is free to work for other individuals at the same time and there is no exclusivity.
- The individual is paid and taxes are not withheld.
- The individual does not have to perform work without additional pay.
When determining if an individual is an employee or an independent contractor, do not rely on what the employer says, contact the law offices of Gerber & Holder and we can assist you.
Can I refuse surgery or medical treatment under workers’ comp?
Workers’ compensation provides an injured employee with three benefits. 1) they are entitled to indemnity benefits (wage loss) if they are either taken out of work by an authorized treating physician or placed on restrictions that the job either cannot accommodate or cannot accommodate to the wages that the injured individual earned before. 2) an injured worker is entitled to a permanent disability rating.
If the authorized treating physician determines that there is a permanent disability as a result of the on the job injury, they are compensated for that. 3) an injured worker is eligible to receive medical treatment for that injured body part paid for by the workers’ compensation insurance carrier.
Treatment provided by the authorized physician that relates to the on-job injury, is paid for by workers’ compensation insurance. The injured worker does not have to pay any deductibles, copays, or any other fees when they attend a scheduled appointment. In fact, they are also entitled to payment of both mileage to and from the doctor’s office, and reimbursement of any parking fees the injured worker may incur at the doctor’s office.
The authorized treating physician can recommend treatment for the injured body part. They can even recommend a referral to another physician for treatment. The injured worker can also make a one-time request in authorized treating physicians. If indemnity benefits are being paid, or have been paid within the last 120 days, they can request an independent medical evaluation with a doctor of their choosing at the expense of the workers’ compensation insurance company.
An injured worker can always refuse medical treatment if they do not want it. They can refuse any invasive or non-invasive procedure if they so choose. Workers’ compensation does require the injured worker to have invasive medical treatment. In that same regard, the injured worker cannot choose to have any medical procedure they want. Any and all treatments have to be prescribed by a treating physician authorized by workers’ compensation.
Just because a doctor thinks that a surgery will help an injured worker mend, it does not mean they have to have that surgery. There may be spiritual, or other medical reason that the injured worker does not, or cannot have the surgery. Nobody, even in a workers’ compensation setting, can force an individual to have surgery. If you have any further questions about medical treatment, please do not hesitate to contact the lawyers at Gerber & Holder.
Does workers’ compensation include overtime?
When an individual is injured on the job and is either taken out of work by the authorized treating physician, or is placed on restrictions that the employer cannot accommodate, they are entitled to workers’ compensation indemnity benefits. Indemnity benefits are weekly checks sent to the injured individual in lieu of their salary. They are not taxable and the legislature has determined what they should be.
The formula to determine total disability benefits is as follows: Total the gross total of the thirteen weeks prior to the week of the injury. Make sure you have worked for most of the 13 weeks prior to the injury. If you took time off from work, had a vacation, or were not employed during those thirteen weeks, there are other ways to determine what your average weekly wage should be. Once you have the total, you divide the total by thirteen and multiply it by ⅔. This gives you the temporary total disability rate in Georgia. As of July 1, 2019, the maximum you can earn in temporary disability benefits is $675 per week.
In totaling gross wages for thirteen weeks, the question often arises, what about overtime work and cash that I received from my job that I did not report? The answer is that both can be calculated in your gross wages. If your employer did not include overtime in your pay, and you are entitled to it, let the attorneys at Gerber & Holder assist you in finding an attorney who can help you get the money you deserve.
Overtime is included in the calculation of your average weekly wage for workers’ compensation purposes, even if you were entitled to it but did not receive it. Please contact us at Gerber & Holder to discuss your case.
Can you sue after workers’ comp? Can you sue your employer after you settle your workers’ compensation case?
The official code of Georgia also makes workers’ compensation the exclusive remedy for on the job injuries. This means that you have to use the workers’ compensation system if you were hurt on the job. Therefore, even if your employer was negligent, they probably cannot be sued outside of the worker’s compensation setting.
This sounds harsh, but the tradeoff is that no matter whose fault the injury was, even if it was your own, you can recover under the workers’ compensation statute. When you settle your workers’ compensation claim, you will sign a package of settlement documents.
The Workers’ Compensation settlement agreement, called a Stipulation & Agreement, almost always states you and your employer are resolving your entitlement to all past or future workers’ compensation benefits. The State Board of Workers’ Compensation will review and approve the Stipulation & Agreement. Once this agreement is approved by the State Board, it is final and cannot be appealed by either party.
In many cases, the settlement package will also include a mandatory “General Release” agreement. In the General Release, you must agree not to sue your employer for any other reason related to your employment. Employees cannot “sue” their employer for their workers’ compensation injuries in most states, including Georgia. The General Release therefore has little impact on most employees.
In some cases, the injured employee has a separate claim or lawsuit against their employer that does not relate to the injury itself. By signing the “General Release,” the employee could waive their right to pursue the separate claim or lawsuit. If you believe you have a separate claim or lawsuit against your employer, you should discuss this issue with your workers’ compensation attorney before you sign the settlement documents.
Please contact the attorneys at Gerber & Holder with any questions regarding your workers’ compensation case.
When can I get an attorney for workers’ comp?
Suffering an on-the-job injury can be a scary and stressful experience. In addition to the pain associated with being hurt, the injured worker usually has little understanding of his or her rights within the system and are under pressure from their employer to continue working even though they are not physically able to perform their job duties. This can put a job they desperately need in jeopardy. These factors, along with the lack of concern and attention the insurance company is providing, leaves injured workers confused and unsure of what to do.
The question many injured workers begin to ask themselves in the days and weeks following an on-the-job injury is, do I need to hire an attorney? While every claim is different, if you have sustained an injury that requires significant medical treatment and/or you are experiencing pain that limits your ability to perform your job duties, you need to hire an attorney immediately. On the other hand, if you have sustained a very minor injury that only requires one medical appointment and does not affect your ability to perform your job, it may be advisable to wait to hire an attorney unless your medical condition worsens or your employer begins treating you differently because of the injury.
The reason it is important in most cases to retain an attorney, soon after your injury, is many injured workers do not understand their rights within the system. Employers and insurance companies often use this to their advantage. They will send you to a doctor of their choice who may not adequately treat your injuries or even accurately document all of your physical complaints which could affect your claim in the future. In addition, your employer may push you to perform your regular job duties, even though the treating doctor has provided work restrictions. Furthermore, the insurance company may request that you provide a recorded statement. The primary purpose of this recording is to build a case for the denial of the benefits you are entitled to. Or, the insurance company may try to settle the case with you at the very early stages of your medical treatment, without accurately taking into consideration the actual value of your claim.
The job of your attorney is to assist you with navigating, what can be a very complicated system, and ensuring that your employer and their insurance company comply with Georgia law. If you delay reaching out to an attorney, some of your rights within the workers’ compensation system may be compromised, which could negatively impact your ability to obtain adequate medical treatment, receive appropriate compensation and, most importantly, recover from your injuries. If you have been injured on the job, you need to reach out to an attorney who specializes in representing injured workers as soon as possible and, preferably, before you have spoken with the insurance company. The attorney you contact should be able to give you an honest assessment of whether your injuries warrant hiring counsel.
Who can be excluded from workers’ compensation?
Workers’ compensation insurance is required of all employers who have more than three employees in the state of Georgia with limited exceptions.
The first group of people who are not covered under workers’ compensation are employees of businesses who do not have three workers. In some instances, the business will be small, and there will only be two employees. Other times, the business may appear to have many employees, who are actually classified as independent contractors. Remember, just because you are labeled by the employer as an independent contractor does not mean that under the eyes of the law you are not actually an employee.
A second class of people who do not fall under the workers’ compensation statute are farm workers. In 1990, the state legislature of Georgia excluded farm laborers from the act. This does not just include farmers, but potentially people who also work on farms doing other jobs. It should be noted that farm workers can be protected by workers’ compensation if their employer provides coverage for them, they just are not required to.
Prisoners are also not entitled to workers’ compensation if they were injured on the job. This holds true even if they are required to do the job as part of their incarceration, and even if they were paid for the job. Prisoners who are living in halfway houses as part of their incarceration/probation all fall under this exception to workers’ compensation.
A fourth group of people who have a different policy then regular workers’ compensation are truck drivers. Many truck drivers, but definitely not all, have a separate policy called an occupational accident policy. This policy is very similar to workers’ compensation and it is best to call the attorneys at Gerber & Holder if you have any questions about who is covered by workers’ compensation.
How are unemployment insurance and workers’ compensation alike?
Unemployment insurance and workers’ compensation are alike in one very big way. They provide money to an individual while they are out of work. They are also similar in that if you voluntarily quit work, you may not be entitled to either benefit. However, the similarities end there. In fact, unemployment insurance and workers’ compensation are very dissimilar.
When an individual is laid off from a job because their employer goes out of business, or you are laid off because of downsizing or you are let go due to reasons that are no fault of your own, (and not terminated for cause), then you may be eligible for unemployment benefits. Once you are no longer working, you have to apply for unemployment benefits with the Georgia Department of Labor. The state determines how much you will receive in weekly benefits based upon your previous work history with the maximum benefit of $330 per week. Furthermore, you are only eligible for unemployment benefits for up to 20 weeks in Georgia. Finally, while you are on unemployment benefits, you must attest that you are able to perform work in the job force.
In order to receive workers’ compensation benefits, an injured worker must either be totally taken out of work by the authorized treating physician or have been placed on light duty restrictions that the employer cannot meet. There is a 400-week cap on non-catastrophic cases which is significantly longer than the 20-week maximum for unemployment benefits.
A common question that is asked of us is can I receive unemployment benefits while I am receiving workers’ compensation benefits? Technically the answer is yes, but it is a bit more complicated in practice. It is not a boon to receive both, as the workers’ compensation insurance carrier will typically take a credit via a WC-243 form on any monies received by the injured worker. Simply put, this typically precludes an injured worker from ever receiving more than $675 per week, the maximum temporary total disability rate.
If you have any questions about workers’ compensation benefits and how it may affect your unemployment benefits, please do not hesitate to contact the lawyers at Gerber & Holder.
When is it too late to file for workers’ compensation?
After you’ve been injured at work, or you discover you have a medical condition caused by workplace conditions, you must report the injury or illness to your employer within 30 days; although the sooner, the better. When reporting the injury, make it abundantly clear that you were injured on the job. While it will not be a detriment to you if a written report is not made, it will certainly help you to make sure there is written evidence of notifying your employer.
A statute of limitations is a law that limits the timeframe in which a legal action can be brought. In Georgia, the amount of time to file a workers’ compensation claim with the State Board of Workers’ Compensation varies depending on many factors. If no indemnity benefits are paid, and no medical treatment is provided by your employer or the workers’ compensation insurance company, then you have one year from the date of injury to file notice with the State Board of Workers’ compensation via a WC-14 form. Additionally, if an individual dies on the job, then the heirs or the state has to file notice with the State Board within one-year from the death of the employee.
However, there are several exceptions to this one-year rule. If no indemnity benefits have been paid, the injured worker has one year from the last medical treatment date paid for by the Employer/Insurer. This means that if an injured individual is sent to a doctor by their employer or the workers’ compensation insurance company, they have one year from that date of treatment, regardless of when the bill was actually paid, to file notice with the State Board of Workers’ Compensation.
The second exception is when an individual has received a weekly check. The injured worker will then have two years from the date of the last weekly income check received to file a claim with the State Board. A third exception exists when the injury is a disease. In this instance, the injured individual will have one year from the date of becoming aware of a disease, unless it has been longer than seven years from the time the employee was exposed to the disease-causing material.
There are also instances where an accident occurs while at work, but the employee continues to work and does not incur lost time, but the injury is later aggravated by continuing to work and lost time results, a “new” injury is said to arise. In these situations, the one-year statute of limitations begins to run from the date the employee last worked.
Please contact Gerber & Holder if you have any questions about filing a workers’ compensation claim.
What is a nurse case manager?
A nurse case manager (“NCM”) is a licensed professional hired by the insurance company to provide assistance with the medical aspect of the case. The NCM is hired and paid by the insurance company. The type of services provided by the NCM depends on the severity of the employee’s injury. Their activities often include coordinating medical appointments, ensuring medical treatment is authorized and scheduled, and facilitating approval of a light-duty job for the injured worker. In most cases, the injured worker can choose whether or not to work directly with an NCM.
Some employees find the NCM to be useful. This is especially true for employees who have sustained significant injuries. The NCM can help the injured worker negotiate treatment with various specialists and obtain such services as home healthcare and medical devices.
In other cases, the NCM can be an annoyance. If the employee’s treatment needs are straightforward, they may not need the NCM’s help. The employee may also feel the NCM is pushing the insurance company’s agenda, rather than advocating on their behalf. It can also be uncomfortable for an employee to be examined in the presence of his or her nurse. The State Board of Workers’ Compensation also allows the NCM to assist with having a light-duty job approved by the employee’s doctor, which can affect the employee’s income benefits.
If the employee chooses, they can notify the insurance company that they do not want to work with the NCM any longer. Once the insurance company receives notice of the employee’s choice not to work with the NCM, the NCM will be forbidden from contacting the employee directly or attending their medical appointments. By law, the NCM will still be able to contact the doctor directly without including the employee.
The above rules apply to a majority of workers’ compensation cases. However, if you have sustained a “catastrophic” injury or if your employer provides medical treatment through a Managed Care Organization, different rules may apply to your case. You should consult with a workers’ compensation attorney at Gerber & Holder regarding any questions you have about your NCM.
What can I do if my employer doesn’t have workers’ compensation coverage?
Every employer in Georgia is required to carry workers’ compensation coverage (insurance) if they have at least three employees. If the business is a husband-wife team, they are not required. If the business is just two people, they aren’t required. But if three or more people are employed at the business, the business must have coverage. Some employers chose not to follow the law, however and many are operating in Georgia without proper coverage. If you find yourself injured while on the job and discover your employer does not have workers’ comp insurance, it doesn’t necessarily mean you are out of luck to receive some type of benefit.
The first thing you must do is report your injury to your employer. They may tell you they don’t have coverage, but just because they tell you they don’t have it doesn’t mean they truly don’t. Sometimes employers don’t want workers to report an injury for fear their premiums will go up, or they may have a different name that they are legally operating under and that entity has coverage. You can read more about this type of situation here, or simply reach out and schedule a visit with a Gerber-Holder Law attorney today – we can do some digging and find out what’s available to you.
When can workers’ compensation insurance cut off my benefits?
There are three main times insurance companies can stop paying you workers’ compensation indemnity benefits if you are receiving a weekly check. The first is if the authorized treating physician releases you back to normal duty work. This is not light-duty work, or work with any restrictions – this is regular duty work.
At that point in time, the insurance company must file a WC-2 suspending benefits. If you do not receive a WC-2 form in the mail, please contact your attorney right away because your benefits have been illegally stopped.
The second reason the insurance carrier can stop paying you workers’ compensation benefits is if you are offered light-duty work, and on your own, you return to that light-duty work, and you are making as much — or more — than you were making before you were injured.
The third reason an insurance company can stop paying you workers’ compensation benefits is if a company offers you light-duty work pursuant to the restrictions placed upon you by the authorized treating physician and they fill out form WC240. The first step on the WC240 form is they must get a doctor to sign off on a specific job duty; subsequent to that, they must send you notice of the job and provide you 10 days to report to work. If you report to work during this time, they are able to suspend benefits. If you refuse to return to work and the doctor has not done anything to revoke the WC240, then benefits can properly be suspended.
What is the Affordable Care Act and how can it benefit our clients – both former and perspective?
The ACA, which is sometimes referred to as Obamacare, is a health insurance marketplace that provides government-subsidized health insurance to people who would otherwise lack insurance or be underinsured. Any client of ours that does not have insurance is encouraged to visit www.healthcare.gov and see if any of the available policies would fit their needs. There are specific open enrollment periods, usually in the fall. Currently, a window is open until May 15, 2021.
What does the Affordable Care Act cover and what does it not cover? For our clients, when they settle their cases, their medical situation hasn’t resolved just because they’ve settled. The injury they have sustained may linger and continue to cause them pain. This means that they almost always have some type of preexisting condition. They can get health insurance through the ACA because it covers preexisting conditions. Additionally, there are some situations when people can get assistance financially to purchase one of these health plans. In our experience, the ACA has helped people get the medical care they need; we encourage our clients to take a look at the plans offered and see if one will suit their needs.
The general way the ACA works is that it offers a variety of subsidies, sometimes called tax credits, which operate on a sliding scale. The subsidies come into play to limit the amount a person pays in monthly premiums to a percentage of that person’s annual income. Generally, people are eligible for a subsidy or two if they earn 400% or less of the federal poverty level. For example, the federal poverty level for a single person in 2020 is $12,880, so a single person earning up to $51,500 can apply for and most likely get, a subsidy to purchase a health plan.
Disclaimer: Gerber & Holder Law is not advocating the ACA will work in every situation or that if you are receiving workers’ compensation benefits, you will automatically qualify for it; we simply suggest our clients look at the plans offered and see if it works for them.
Why can’t I see and get treatment with my own personal doctor when I get hurt on the job?
The attorneys at Gerber & Holder get asked this almost every day. The reason you can’t get treatment from your own personal doctor after you’ve been injured on the job is due to the rules and regulations in Georgia’s workers’ compensation laws. Most employers have what is called a panel of physicians, which is a list of doctors available to you to treat with. In order for workers’ comp to pay for the treatment, you must pick a doctor from that list. Hiring an attorney is very important at the outset of your case because they can help you pick a doctor, even if it’s not your personal doctor – there are some doctors we’re familiar with who are better than others.
What happens if you use your personal doctor anyway? If you see your personal doctor right after an accident that’s deemed an emergency situation, typically the insurance company will cover that, but if you make a decision to continue seeing your personal doctor after that, the insurance company won’t cover those costs. And if your personal doctor takes you out of work, the workers’ compensation insurance companies do not have to abide by your doctor’s orders, and they won’t cover any lost wages or medical costs. The only caveat to that is if your doctor happens to be an authorized provider, someone who is on that panel of physicians that is authorized by your workers’ comp insurance company.
What happens if my employer either goes bankrupt or goes out of business during my workers’ compensation case?
Fortunately, a company going out of business should have no effect on the workers’ compensation case at all. The reason for this is because, just like in an automobile accident case, once the workers’ comp case is filed, we’re generally dealing with the workers’ compensation insurance company, not the employer.
You still were covered by insurance as of the date of the injury; it wasn’t canceled at that point. Therefore, no matter what happens with the company, the workers’ compensation case can proceed.
One positive from a workers’ comp standpoint is that if the company goes out of business while you are out of work recovering, they will not have the opportunity to bring you back to work on light-duty job status, so you may be able to continue receiving benefits for a longer period of time and have more time to heal.
What happens if the insurance company declares bankruptcy during my case?
Unfortunately, that does happen from time to time, and any workers’ comp attorney who has practiced law for as long as we have has seen this type of situation.
The state of Georgia has something called an “insolvency pool,” which provides a state-run backstop for insurance companies for exactly this type of situation. If your case goes to the insolvency pool, you’ll definitely want an attorney to help you navigate the complexities and differences to navigate the insolvency pool rules and regulations.
If you are representing yourself in a workers’ comp case and your employer’s insurance company goes bankrupt, we strongly recommend employing an attorney at this time. But the bottom line is that the state has reserves in place, so you will still continue to receive indemnity benefits and medical treatment for your workers’ compensation case.
Visit the Georgia State Board of Workers’ Compensation for more frequently asked questions.
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Are you ready to learn more about your injury claim? Fill out a contact form or give us a call and we’ll be in touch with you shortly to get more details about your case. The Georgia statute of limitations requires injured workers to file a workers’ compensation claim within 1 year from date of injury (not 2 years like most other personal injury claims). After this period, your chance to receive financial reimbursement may expire.