Assuming that an employee has a wage-continuation plan or sick leave policy, the employer should offer the employee the choice to receive either the sick leave OR the workers’ compensation benefits after the employee is injured.  In most cases, the wage-continuation plan/sick leave will be equal to the employee’s salary which is usually more than temporary total disability benefits (TTD).   Therefore, most employees will elect to receive the wage-continuation benefits over the workers’ compensation benefits (TTD).

It is important for the employee to understand that when the employer offers the employee both types of benefits, the employee must select one in lieu of the other.  In other words, they cannot select one now and use the other later.  If the employee elects to receive benefits under the wage-continuation plan, the employee will not receive the workers’ compensation benefits and the employer can request a credit for the workers’ compensation benefits.  Under the law, employees are offered 400 weeks of workers compensation benefits.  When an employee chooses his wage-continuation plan, the employer can obtain a credit pursuant to O.C.G.A. § 34-9-243 which starts the clock ticking for the 400 weeks of workers’ compensation benefits.

Currently, and until December 31, 2009, a person who is involuntarily terminated, absent gross misconduct, will receive a 65% reduction in the premium amount for COBRA coverage.  This reduction can last for up to 9 months.  Information about this program can be found at www.dol.gov/ebsa/faqs/faq-cobra-premiumreductionEE.html.   This obviously can prove very valuable to those people who are fired after being injured on the job and require medical treatment.  Many people will be able to maintain their health insurance while looking for another job.

Under the terms of virtually every workers’ compensation settlement, the employee is required to resign from employment with the employer.  For most people, this means forfeiting any benefits they may have enjoyed while employed, including health insurance.

Unfortunately, the guidelines for what is meant by involuntary termination in the above-listed website does not specifically address whether a resignation as requirement of a workers’ compensation settlement qualifies.  Based upon what is written, it appears that the Department of Labor would examine each settlement individually to determine whether the resignation was voluntary or not.

The aforementioned retirement benefits are considered contractual benefits which fall outside the scope of the Georgia Workers’ Compensation Act. Workers’ compensation attorneys will explain to their clients at the inception of a claim that several additional claims may arise out of a workers ‘ compensation claim, such as violations of ERISA or COBRA.  Often times ERISA or COBRA violations are tangentially related to a claim for compensation and will not be handled by a workers ‘ compensation attorney.

For example, an employee may be confronted with a violation of ERISA or the Employee Retirement Income Security Act of 1974 with regards to an employer denying the employee access to health benefits.  ERISA was enacted to ensure that Employers uphold their legal obligations to their employees with regards to health insurance plans.  Most employee health plans are covered by ERISA and require that employers provide participants or beneficiaries (employees and their  dependents) with access to plan information.  Additionally, ERISA also requires employers uphold their fiduciary responsibility to their employees by ensuring employers properly manage and oversee plans with the best interest of the employees in mind.

In the context of a workers’ compensation claim, an employee must be mindful of possible ERISA related issues that may arise either during the handling of their claim or during settlement. ERISA claims are often very complex and although your workers’ compensation attorney can identify an ERISA violation, the claim will probably be referred to an ERISA attorney.

It is important that employees take full responsibility for discussing and/or bringing concerns about related issues to their workers’ compensation attorney.  At the Ramos Law Firm, our attorneys specialize in workers’ compensation, however, we work with our clients to ensure their rights are protected under the Georgia Workers’ Compensation Act and will refer our clients to experienced attorneys if an issue outside of the employee’s workers’ compensation claim arises.