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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.

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.

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The State Board of Workers’ Compensation requires notice of temporary partial disability conversion

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