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Delayed workers compensation hearing

It is not uncommon for a hearing to be reset three or even four times depending on the complexity of the case.  However, the injured workers’ attorney will likely contest any continuances or resets if he or she believes the Employer or Insurance company is attempting to take advantage of the Claimant’s condition or is simply delaying the injured worker’s day in court.

Board Rule 102 (C) provides that if a hearing is set for the first time and all parties agree to reset the hearing, a postponement will be granted without permission from the presiding Administrative Law Judge.  The parties would simply notify the ALJ that the parties agree to the continuance.  However, if one party objects to the continuance on the first setting, then judicial intervention would be necessary.  Generally, the attorneys would have a conference call with the presiding ALJ to determine whether a continuance would be justified.  As an unwritten rule of thumb, the first setting is usually continued in order to take discovery and to complete the parties’ investigation.  The second and third settings will likely be more scrutinized and a continuance will be granted only on “strict legal grounds.”


The settlement they offered me was too low

We often get calls from potential clients stating that they have been offered a settlement and they feel it was too low. There are a number of reasons the caller may feel this way. The most obvious reason is that it is too low. The insurance company wants to settle the claim and move on. They are not concerned with how you will live or what kind of lifestyle you will have after settlement. Another reason may be that injured parties often feel there should be compensation for their pain and suffering. Unfortunately, in workers’ compensation there is no value for pain and suffering and that will not equate to a monetary payment.

The value of a workers’ compensation claim comes from where the medical leads the file. If an approved workers’ compensation doctor has you out of work then weekly benefits may be owed. When that doctor puts you back to work he may assign you an impairment rating and that will factor into the value of your claim. You may also need continued medical care, even if that is only a few times a year. That will also go into the value of your claim but it will be based off of the Georgia workers’ compensation fee scheduled price.

If you have questions about your workers’ compensation claim, please call us today and let us help. 404-355-3431

2014 Revised Board Rules and Forms

On July 1, 2014, the State Board of Workers’ Compensation provided a modification of its Board Rules and Forms.

The following is a summary of the changes:

Rule 40 was amended to add the address of the new Gainesville office.

Changes to Rule 61—Descriptions of Forms

Form WC-20(a). This amendment provides that the new 1500 Claim Form may be used in lieu of Form WC-20(a). The 1500 Claim Form replaces the obsolete HFCA Claim Form. Same change is made to Rule 205.

Forms WC-226 (a) and (b). The words “conservatorship and conservator” replaces “guardianship and guardian” to be consistent with O.C.G.A. § 34-9-226.

New Form Rehab Objection is added to be used by any party who has an objection to a rehabilitation issue.

Rules applicable to practice before the Board

Rule 102(A) (1). The reference to Rule1-203 of the State Bar Rules was deleted as that Rule is no longer a part of the Bar Rules. However, the current State Bar Rules or as hereafter amended are controlling as to practice before the Board.

Failure to comply with Document Production specified in Form WC-102.

Rule 102(F) was amended to specifically provide that a party or attorney who fails to comply with the document production specified in Form 102, and who is unable to show good cause for such failure, may be subject to civil penalties and /or assessed attorney’s fees.

Peer Review

Rule 203 (c) (2). Two new peer review groups have been added: Dane Street and Exam Works.

Parties at Interest

Rule 206 (c) was amended to clarify that the Board will provide notice to a party at interest of any hearing at which the party at interest will be permitted to present evidence of its claimed interest.

Objections to Advances

Rule 222 (b) (2) was amended to provide that objections to applications for lump sum advances shall be submitted on Form WC-25.

Do jury trials or pain and suffering exist in workers’ compensation?

An injured worker is not entitled to a jury trial in a workers’ compensation case.  The Georgia law creates “trial” and “appellate” divisions within the jurisdiction of the State Board of Workers’ Compensation.  O.C.G.A. § 34-9-47.  The trial division is apprised of administrative law judges (ALJ) appointed by the Chairperson and the Board.  Some of the powers an ALJ may have include: administering oaths and affirmations, issuing subpoenas, administering hearing protocol and calendaring, ruling upon offers of proof and motions, determining the compensability of claims, and adherence to the Georgia Workers’ Compensation Act.

When an injured worker goes to workers’ compensation “court”, this proceeding is generally called a “hearing” wherein the claim is heard by the ALJ and evidence is tendered by the parties.  The ALJ’s jurisdiction is only over the workers’ compensation parameters.  He or she cannot rule on issues of “pain and suffering” or matters of “equity.”  The Georgia Rules of Evidence do apply in these proceedings and there will be a transcript of the hearing. Generally, the ALJ will not issue a ruling from the bench but will consider all the evidence and review the parties’ closing briefs prior to rendering an award.

Upon occasion, injured workers appear before the trial division without an attorney.  This is not advisable given the complexities of the law and rules imposed upon Employers and Workers.  Once the ALJ renders an award, either party may appeal to the Appellate Division, which consists of three members of the State Board of Workers’ Compensation.  O.C.G.A. §34-9-47 (b).  The aggrieved party has 20 days to appeal the award to the Appellate Division.

What now? Injured employees being laid off

Injured employees being laid off from Briggs & Stratton in McDonough, Georgia, may be entitled to workers’ compensation income benefits.  These workers will be classified in certain categories.  First, if injured Briggs & Stratton workers are “out of work” on “total disability” from a work-related accident or injury and they are receiving income benefits at the time of the lay off, those workers should continue to receive those benefits.  The closing of the McDonough plant will not change the status of the employee’s entitlement to benefits.  These benefits may be modified if the authorized treating physician releases the injured employee to “full duty” or “regular duty” work status.

Second, if the injured workers are on “light duty” work status at the time of the lay off, they are not automatically entitled workers’ compensation income benefits.  These workers have a burden to look for suitable light duty work after they have been laid off.  This job search must be “diligent” and sincere.   If the injured employee is not able to secure “suitable” employment elsewhere, the court must be able to “infer” that the former employee’s reason for being refused subsequent employment is due to the residual physical restrictions.  This analysis will be heavily fact sensitive and attorney should be consulted.

From a medical perspective, the plant closing should have no bearing on whether an injured worker is allowed to seek further treatment for his or her occupational injury.  The future medical care includes visits to the doctor, physical therapy, diagnostic centers, medication and mileage reimbursement.

The Employer, Briggs & Stratton, or any other company cannot contract around workers’ compensation.  For example, if an injured worker at Briggs and Stratton accepts a “severance package”, this contract will not contain waivers of the employee’s entitlement to workers’ compensation benefits.  Any waiver or release of workers’ compensation must be approved by the Georgia State Board of Workers’ Compensation by law and the employee should retain counsel to navigate him or her through this complicated process.

Selecting the best attorney for your workers’ compensation case

Selecting the best attorney for your workers’ compensation case will depend on number of things.  Not unlike doctors, there are many attorneys in the greater-Atlanta area.  However, not every attorney is equipped to handle workers’ compensation claims.  Similar to selecting the best or “right” doctor for your needs, you must consider whether the prospective attorney’s practice is focused on workers’ compensation claims.  For example, if have a knee problem, you would not treat with a cardiologist for the knee issue.  If you have a workers’ compensation case, you should seek advice from an attorney who almost exclusively handles workers’ compensation claims.

Additionally, when selecting the best attorney for your needs, you should consider whether he or she is rated by AVVO or Martindale Hubbell.  These two organizations are good resources to determine the attorney’s reputation and skill level.  These rating services usually have comments from prior clients and other attorneys.

Finally, you should be able to speak to your attorney.  In many instances, the clients seldom get the opportunity to communicate directly with the attorney.  It is common to first speak to a paralegal or assistant, but at some point the client should be able to talk to the attorney directly.  Again, drawing from the medical field, patients will speak to nurses and assistants when they are sick, but they should be examined by an actual doctor.  It should be the same for a legal matter.  The client should get to speak to his or her attorney directly.

Selecting the best attorney for your case is an important decision.  It should not be taken lightly.

Changing physicians while on workers’ compensation

Changing physicians while you are “under workers’ compensation” can be tricky.  O.C.G.A § 34-9-200(a) requires an employer to furnish the injured employee with medical treatment which “shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.”

O.C.G.A. § 34-9-201(b)(1) allows the employer to satisfy that requirement by posting a panel of six physicians from which an employee may accept services. An employee may make one change from a panel physician to another panel physician, and a panel physician may refer the employee to a non-panel physician, although that non-panel physician may not make further non-panel referrals. O.C.G.A. § 34-9-201(b)(1). An employee may also ask the Board to order a change of physician or treatment, and if granted the employer is liable for those expenses. O.C.G.A. §§ 34-9-200(b); 34-9-201 (e).

In a recent case of Mei Yu Zheng v. New Grand Buffet, 321 Ga. App. 308 (2013), the court of appeals addressed the procedure and rights surrounding a change of physicians.  Ms. Zheng suffered a work injury which was accepted by workers’ compensation.  The Employer and insurance company made medical treatment available to the her.  There was some dispute as to whether the Employer had a valid panel.  The insurance adjuster represented there was “no panel” and the claimant unilaterally selected a doctor of her own choosing and incurred medical expenses.

The Court of Appeals held that if the employer is providing medical care, regardless of whether a panel of physicians is posted or not, the employer will not be liable for medical expenses incurred as a result of an employee unilaterally changing physicians from the treating physician to an unauthorized physician.  Holcombe v. Brown Transport Corp., 253 Ga. 719, 721, 324 S.E.2d 446 (1985); Ga. Baptist Medical Ctr. v. Moore, 219 Ga.App. 171, 172(1), 464 S.E.2d 265 (1995); Wright v. Overnite Transp. Co., 214 Ga.App. 822, 823 (1), 449 S.E.2d 167 (1994).

Therefore, it appears that an injured worker must request the Employer to change her treating physician or petition the Board for approval to formally change doctors for liability to attach to the workers’ compensation carrier.

Living on workers’ compensation benefits?

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