Does Georgia workers’ compensation cover injuries due to workplace violence?
Getting injured on the job can have major consequences. For starters, it may require medical treatment, time out of work because of the injury, and a permanent disability.
In Georgia, it doesn’t matter whose fault the injury is, there is strict liability. This means that even if the injured worker caused their own injury, they are covered by workers’ compensation if their employer is subject to the Act (meaning they employ more than 3 employees).
There are just a few exceptions to this rule, which we will explore below—one of which includes workplace violence. But first, let’s discuss the different types of workers’ compensation benefits injured Georgia workers are entitled to under the law.
Georgia workers’ compensation benefits
There are 3 main benefits available under workers’ compensation.
The first benefit is medical treatment. Workers’ compensation insurance should pay all medical bills for treatment from an authorized treating physician, and from whomever the authorized treating physician refers the injured worker to.
An injured worker is also entitled to a permanent partial impairment rating in Georgia. This is a disability rating assigned by the authorized treating physician.
The third benefit an injured worker receives is indemnity benefits. Indemnity benefits are payments made to the injured worker while they are out of work. The injured worker has to be out of work for one of the following reasons:
- They have been taken out of work by the authorized treating physician.
- They have been placed on restrictions by the authorized treating physician that the employer cannot accommodate.
- The employer can accommodate the restrictions placed on the injured worker by the authorized treating physician, but the injured worker is earning less than his pre injury average weekly wage.
Exceptions to Georgia workers’ compensation law
There are a few exclusions to the workers’ compensation statute in Georgia. This means that even if a case would normally fall under the auspices of workers’ compensation, there is a reason why it does not. There are just 2 main reasons why a normally compensable claim falls outside the workers compensation system and therefore doesn’t qualify an injured worker for benefits.
Specific work types
The first exception is the type of employee. In Georgia, there is a statutory exception for farm workers, prisoners, and independent contractors. This means that these types of workers may not be eligible for workers’ compensation under state law. However, just because a worker is labeled as an independent contractor doesn’t mean they actually are one in the eyes of the law. For this reason, it’s important to talk to a skilled work injury attorney to discuss your work status and compensation rights.
The second reason why a work-related injury might not qualify for workers’ compensation is because the injury was caused by an act that is not permissible—therefore the legislature doesn’t want to condone and encourage the behavior. This law, codified in Georgia law (O.C.G.A. 34-9-17), is labeled as “willful misconduct.”
Some examples of willful misconduct include injuries caused by intoxication and horseplay. For instance, if an individual is hurt on the job and they were intoxicated or under the influence of drugs, then their workers’ compensation benefits can be denied.
Another example of willful misconduct is the failure to use a safety device. This exemption is a high burden for the insurance carrier to meet. They must prove that there was willful misconduct in the injured worker’s failure to use a safety device.
Workplace violence may fall under this category as well, but there are specific questions that must be addressed.
Workplace violence statistics
According to data from the U.S. Department of Justice, while workplace violence and fatalities remain high, in recent years, these incidents have been on the decline.
Between 1992 to 2019, a total of 17,865 workers died from workplace violence in the U.S. In 2019 alone, there were 454 work-related homicides, but this number marked a 58% decrease from its peak in 1994 when 1,080 people were killed on the job.
On average, there are about 8 violent crimes committed at work for every 1,000 workers age 16 and older, resulting in an estimated 1.3 million nonfatal violent crimes in the workplace each year.
Between 2015 and 2019, approximately 529,000 nonfatal work injuries required treatment in emergency rooms, which is equivalent to about 7 workers for every 10,000 full-time equivalent (FTE) workers.
In comparison to male workers, female workers had higher rates of nonfatal injuries caused by workplace violence, approximately 5.1 injuries for every 10,000 FTE workers, compared to only 2.3 injuries for men.
Additionally, male workers were responsible for about 82% of the 340 nonfatal work injuries requiring days off work involving a firearm in 2019.
When is workplace violence covered by workers’ compensation?
Just because an individual was injured by violence on the job doesn’t mean they are excluded from workers’ compensation.
We recently represented a client who was a clerk at a convenience store. During an attempted robbery, he was shot and wounded by the burglar. Would it be fair to exclude him from recovering under the workers’ compensation system because of workplace violence? Clearly not.
There are 2 main qualifiers that must be met for workplace violence to be covered under the workers’ compensation statute.
First, the injuries resulting from the assault must have occurred in the scope and course of employment. This is the same for all workers’ compensation claims, but there is a slight difference here. If a personal dispute spills over into workplace violence, it may not be covered. For instance, if an ex-girlfriend approaches an individual who is working and attacks them on the job, it will probably not be covered because the incident didn’t arise out of the employment; rather, it was personal in nature.
The second issue is that the injured worker must not have been the aggressor in the incident. If an individual attempts to harm a coworker by attacking them, then they are not allowed to recover under the state’s workers’ compensation statute. The aggressor isn’t necessarily the one who attacks first. The individual who caused the incident is deemed to be the aggressor. If one person uses “fighting words” against their co-worker, they might be determined to be the aggressor.
Workplace violence and PTSD
Many times, after an incident of workplace violence, there is the issue of post-traumatic stress disorder (PTSD). In Georgia, for a psychological condition to be treated under the workers’ compensation statute, there must be a physical injury associated with it. However, the psychological injury can last well beyond when the physical injury has healed.
We have worked with many clients who are leery of returning to work after they have been violently assaulted through no fault of their own. In these cases, our clients have received treatment from a psychiatrist through workers’ compensation, even after they have healed physically.
In most states, PTSD benefits fall under "mental/mental," "mental-only" or "psychological" injuries. While a majority of states allow some form of compensation for mental injuries arising out of a physical injury at work (mental/physical injuries), far fewer states allow workers’ compensation for mental harm, suffering, damage, impairment, or dysfunction resulting from some action or failure to act by some individual. Find out more
Example of workers’ compensation for workplace violence
An example of this situation recently happened to one of our clients.
The woman worked on an assembly line in a factory warehouse. Her job was to sort products as they came down the conveyor belt.
While working, a coworker approached and threatened her wellbeing, both by words and by invading her personal space. Our client, fearing for her safety threatened, pushed her coworker back hoping to defuse the situation. In the melee that followed, our client was injured.
The insurance carrier initially denied the claim because our client was the first person to make contact. However, after an investigation and a hearing, they were required to pay for medical treatment and indemnity benefits for our injured client.
Suing a coworker in a third-party personal injury lawsuit
A common question that arises after an act of workplace violence is: Can I sue the individual that caused the injury?
Unfortunately, there’s no easy answer to that question. Typically, a two-part test is required.
First, who was the aggressor in the incident? This is the same question that needs to be answered with regards to compensability of the workers’ compensation claim. If the injured worker wasn’t the aggressor, they may be able to file a personal injury claim. If the injured worker was the aggressor, they will neither have a workers’ compensation nor a personal injury claim.
Second, was the perpetrator of the violence a co-employee? If a co-worker was the person who attacked and injured the worker, then O.C.G.A. 34-9-11 applies and the exclusive remedy falls under workers’ compensation. If, however, the individual was not a co-employee, then that person can be sued in personal injury tort.
If a co-worker assaults a fellow co-worker because of a dispute relating to their job, then neither party can recover against the other in a personal injury tort. However, if a third party hurts an employee, the employee can sue that third-party individual. For example, if a convenience store clerk is robbed and injured, they can sue the robber for damages as well as recover workers’ compensation benefits.
Another example of when an injured worker can sue for assault or violence at work is if there’s more than one company on a job site, and an individual from one employer attacks a person from a different employer. This area of workers’ compensation is very fact specific, which is why you’ll most likely need to discuss your case with a knowledgeable workers’ compensation lawyer.
Why hire a Georgia workers’ compensation attorney
Cases involving workplace violence are often very fact-specific. You should contact a skilled Athens workers’ compensation attorney if your claim is denied by an insurance company for any reason. There are a number of ways we can help you fight and overcome this decision.