Workers Comp 101
david • November 19, 2022
What to know, what to do
A work injury can be a very disruptive event in a person's life. Those most affected are high wage earners who suffer a significant injury. The workers' compensation system is designed to compensate you for just a handful of things:
I will discuss each of these in more detail below. First, however, I would like to discuss the system, and particularly the fact that the workers comp system is a compromise. It is not designed for you to get ahead. It is not even designed for you to break even. It is designed for you to lose. Therefore, maximizing the compensation you are entitled to is paramount.
The Georgia Worker's Compensation Act, like most state worker's comp schemes, is a compromise. It is a no fault system. You do not have to prove your employer did anything wrong in order to receive compensation. All you have to show is that you were inured in an accident arising out of and in the course of your employment, and that no defenses apply. Defenses include intoxication, willful misconduct, and other defenses such as your employer was not subject to the Worker's Compensation Act or you were not an employee at the time. Defenses are beyond the scope of this article, but I do want to note that not every work injury is a valid worker's comp case.
In exchange for not having to prove liability on the part of your employer, you give up the right to sue the employer in court. The worker's comp system is your only remedy. You give up the right to recover for pain and suffering, or the full measure of your lost wages. You give up the right to treat with a doctor of your choosing except in certain limited circumstances. You give up the right to have your case heard by a jury. You cannot recover non-economic damages such as loss of enjoyment of life. The compromise works both ways. The employer has to pay you even if they did nothing wrong, and you have to accept the benefits the system allows with no ability to recover a full measure of your damages outside the worker's comp system.
Assuming you are an employee and your employer is subject to the Act, when you are injured in an accident arising out of and in the course of your employment, your employer is supposed to provide you with medical treatment immediately. This is usually done by having you choose a physician from the employer's "posted panel of physicians." The panel is required to be posted in prominent places, and in return you are required to choose a doctor from the panel for treatment. There are limited exceptions to this for emergency treatment or if the panel is invalid; however, in most cases you will be required to treat with one of several doctors the employer chooses. If you have questions about whether the employer's panel is valid, or which doctor you should choose for your injury, do not hesitate to call us. We will be happy to assist you in making a good choice.
If the doctor treating you, called the "Authorized Treating Physician" or "ATP," says you cannot work, or has you on light duty that the employer cannot accommodate, the employer and insurer are required to commence Temporary Total Disability ("TTD") benefits. This will be two-thirds of your average weekly wage (calculated as the average of the 13 weeks pre-injury, with certain exceptions), up to a maximum of $725.00 per week as of the date of this writing. Benefits must be started within 21 days of the injury, and you are not entitled to benefits for the first week of disability unless you remain out of work for more than 3 weeks, at which point the first week becomes due. If you are able to work light duty and your employer has light duty work, you will only receive benefits if you are earning less money than you were pre-injury. This is called Temporary Partial Disability ("TPD"). This is two-thirds of the difference between your pre-injury wage and your post-injury wage, up to a maximum of $483.00 per week as of the date of this writing. This is payable until such time as you earn more than your pre-injury wages, or alternatively are returned to work "full duty with no restrictions."
Your doctor may assign an "impairment rating." In Georgia this must be calculated according to the 5th Edition AMA Guides to the Evaluation of Permanent Impairment . This benefit is called Permanent Partial Disability ("PPD"), and will be a percent rating, paid at your TTD rate, against any of several scheduled body parts (fingers, hand, arm, leg, eye, etc.), or to the body as a whole. When there are multiple ratings to different body parts, you recover all of them. For example, if you have a 5% rating to the arm, the upper extremity is rated at 225 weeks. So you multiply 225 times 5 percent, and the result is you are entitled to 11.25 weeks of benefits at your TTD rate. If the rating is done multiple ways (to the finger, to the hand, to the arm and to the body as a whole), you generally get the calculation that pays you the most money. PPD is the only compensation you get for permanent injury. As noted above, there is no recovery for pain and suffering or loss of enjoyment of life.
In a catastrophic claim, the caps may be extended. Catastrophic claims are an article unto themselves, but briefly, there are several situations such as paralysis, loss of a certain percent of sight or hearing, certain amputations, that are automatically catastrophic. There is also a "catch all" provision that states if you are unable to do your past work or any work available in substantial numbers in the national economy, your case can be designated as catastrophic. Catastrophic claims are incredibly complex, and should not be undertaken without the assistance of an attorney.
As you can see, the workers' compensation system is very complex and in many cases very subjective. Your employer and insurer may believe they have defenses that do not apply, or may believe your benefits should be calculated one way when the law requires them to be calculated in a way that might net you more benefits. Having an experienced worker's comp attorney on your side can make the difference between recovering all the benefits to which the law entitles you, or recovering less. Since the system is already a compromise, this is unacceptable. If you have questions about your worker's comp case, call us today!
- Medical treatment for up to 400 weeks from the date of injury
- Two-thirds of your lost wages, up to a statutory cap (as of this writing in November of 2022, $725.00 per week) if you are completely unable to work, to a maximum of 400 weeks from the date of injury, which is often reduced to 350 weeks from the date of injury if you have work restrictions but are still out of work
- Two-thirds of the difference between your pre-injury wages and your post-injury wages if you are able to work light duty but are earning less money than you were before the accident, up to a statutory cap (as of this writing in November of 2022, $483.00 per week), to a maximum of 350 weeks from the date of injury
- Permanent impairment
- In catastrophic cases, entitlement to weekly benefits and medical treatment may be extended past the 350/400 week caps
I will discuss each of these in more detail below. First, however, I would like to discuss the system, and particularly the fact that the workers comp system is a compromise. It is not designed for you to get ahead. It is not even designed for you to break even. It is designed for you to lose. Therefore, maximizing the compensation you are entitled to is paramount.
The Georgia Worker's Compensation Act, like most state worker's comp schemes, is a compromise. It is a no fault system. You do not have to prove your employer did anything wrong in order to receive compensation. All you have to show is that you were inured in an accident arising out of and in the course of your employment, and that no defenses apply. Defenses include intoxication, willful misconduct, and other defenses such as your employer was not subject to the Worker's Compensation Act or you were not an employee at the time. Defenses are beyond the scope of this article, but I do want to note that not every work injury is a valid worker's comp case.
In exchange for not having to prove liability on the part of your employer, you give up the right to sue the employer in court. The worker's comp system is your only remedy. You give up the right to recover for pain and suffering, or the full measure of your lost wages. You give up the right to treat with a doctor of your choosing except in certain limited circumstances. You give up the right to have your case heard by a jury. You cannot recover non-economic damages such as loss of enjoyment of life. The compromise works both ways. The employer has to pay you even if they did nothing wrong, and you have to accept the benefits the system allows with no ability to recover a full measure of your damages outside the worker's comp system.
Assuming you are an employee and your employer is subject to the Act, when you are injured in an accident arising out of and in the course of your employment, your employer is supposed to provide you with medical treatment immediately. This is usually done by having you choose a physician from the employer's "posted panel of physicians." The panel is required to be posted in prominent places, and in return you are required to choose a doctor from the panel for treatment. There are limited exceptions to this for emergency treatment or if the panel is invalid; however, in most cases you will be required to treat with one of several doctors the employer chooses. If you have questions about whether the employer's panel is valid, or which doctor you should choose for your injury, do not hesitate to call us. We will be happy to assist you in making a good choice.
If the doctor treating you, called the "Authorized Treating Physician" or "ATP," says you cannot work, or has you on light duty that the employer cannot accommodate, the employer and insurer are required to commence Temporary Total Disability ("TTD") benefits. This will be two-thirds of your average weekly wage (calculated as the average of the 13 weeks pre-injury, with certain exceptions), up to a maximum of $725.00 per week as of the date of this writing. Benefits must be started within 21 days of the injury, and you are not entitled to benefits for the first week of disability unless you remain out of work for more than 3 weeks, at which point the first week becomes due. If you are able to work light duty and your employer has light duty work, you will only receive benefits if you are earning less money than you were pre-injury. This is called Temporary Partial Disability ("TPD"). This is two-thirds of the difference between your pre-injury wage and your post-injury wage, up to a maximum of $483.00 per week as of the date of this writing. This is payable until such time as you earn more than your pre-injury wages, or alternatively are returned to work "full duty with no restrictions."
Your doctor may assign an "impairment rating." In Georgia this must be calculated according to the 5th Edition AMA Guides to the Evaluation of Permanent Impairment . This benefit is called Permanent Partial Disability ("PPD"), and will be a percent rating, paid at your TTD rate, against any of several scheduled body parts (fingers, hand, arm, leg, eye, etc.), or to the body as a whole. When there are multiple ratings to different body parts, you recover all of them. For example, if you have a 5% rating to the arm, the upper extremity is rated at 225 weeks. So you multiply 225 times 5 percent, and the result is you are entitled to 11.25 weeks of benefits at your TTD rate. If the rating is done multiple ways (to the finger, to the hand, to the arm and to the body as a whole), you generally get the calculation that pays you the most money. PPD is the only compensation you get for permanent injury. As noted above, there is no recovery for pain and suffering or loss of enjoyment of life.
In a catastrophic claim, the caps may be extended. Catastrophic claims are an article unto themselves, but briefly, there are several situations such as paralysis, loss of a certain percent of sight or hearing, certain amputations, that are automatically catastrophic. There is also a "catch all" provision that states if you are unable to do your past work or any work available in substantial numbers in the national economy, your case can be designated as catastrophic. Catastrophic claims are incredibly complex, and should not be undertaken without the assistance of an attorney.
As you can see, the workers' compensation system is very complex and in many cases very subjective. Your employer and insurer may believe they have defenses that do not apply, or may believe your benefits should be calculated one way when the law requires them to be calculated in a way that might net you more benefits. Having an experienced worker's comp attorney on your side can make the difference between recovering all the benefits to which the law entitles you, or recovering less. Since the system is already a compromise, this is unacceptable. If you have questions about your worker's comp case, call us today!
The Georgia Court of Appeals today limited the application of the so-called " Rycroft defense" in workers' compensation cases. Put most simply, the Rycroft defense allowed an employer to escape any responsibility for a work injury where the employee had knowingly and willfully made a false representation about a prior injury, the employer relied upon that injury and hired the employee as a result of that reliance, and there is a causal injury between the false representation and the work injury. Today, in McKay v. Inalfa Roof Systems, Inc., et al. , case no. A24A1422 (Ga.App. 2025), the employee had undisputedly failed to inform the employer of a prior injury to the same body part she injured in this case. The State Board found that her first injury, on June 11, 2021, was barred by the Rycroft defense. Following the June 11, 2021 back injury, but prior to returning to work, the claimant informed her supervisor both of the prior injury and her belief that the June 11, 2021 injury had aggravated it. Despite this knowledge, the employer returned her to work in the same job, on September 9, 2021, approximately two months after the accident. She then suffered a second on-the-job injury on September 14, 2021. So the timeline is roughly as follows: July 16, 2012 -- pre-employment injury due to a four-wheeler accident Late 2020 -- claimant begins work for employer and fails to disclose four-wheeler accident or injuries on post-hire questionnaire June 16, 2021 -- first injury at work September 9, 2021 -- claimant, who has now informed employer of both the July 16, 2012 injury and her belief the June 16, 2021 injury aggravated it, returns to work September 14, 2021 -- claimant suffers second injury The only issue on appeal was whether the second injury on September 14, 2021, after the employer was notified of the pre-employment injury and returned her to work anyway, was barred by the Rycroft defense. The employer argued, and the State Board of Workers' Compensation held, that it was. The McKay Court reversed that finding today. The McKay Court reasoned that: The common law underpinnings of the Rycroft defense — theories of fraud and fraudulent inducement to contract — require that a party rely on the false representation to his detriment, and that the reliance be justified. In the fraudulent-inducement-to-contract context, a party’s failure to rescind or repudiate the agreement after learning of the fraudulent representation acts as a waiver of that defense. By analogy, Inalfa’s willingness to retain McKay in the assembly operator position, after learning of her prior back injury and false representation about it, waives its right to use the Rycroft defense to deny McKay workers’ compensation benefits for the subsequent injury she suffered. The Court thus found the second, September 14, 2021 injury to be compensable. This is a victory for injured workers in the State of Georgia. If allowed to stand, the State Board's ruling would have essentially meant that employers can return employees to work, knowing in full they had a pre-employment injury, and yet never have to pay them workers' compensation benefits if they are injured. The ruling turned the Rycroft case on its head, as the Court of Appeals rightly found, by taking the fraud and reliance elements out of consideration and rendering the Rycroft defense a punitive measure rather than a remedial measure. That is, the State Board saw fit to punish the claimant for not disclosing the prior injury, rather than remediating the damage done to the employer by the failure to disclose. But Rycroft was never meant to be punitive -- it was intended to apply contract principles to the employer/employee relationship such that the employer could not be induced to hire someone who was prone to injury when that person knowingly and willfully failed to disclose the injury after being asked. We know this because the Rycroft case actually requires the employer to ask. The Rycroft Court held that an employee may not falsely respond to a questionnaire given by the employer in order to determine suitability to do the job. It did not state, or imply, that the employee has an affirmative responsibility to outline each and every injury she has ever suffered, or to disclose potential disabilities. The employer has to ask. There are many and varied reasons why this is the case, and the Rycroft Court spelled them out. Suffice it to say, it was never intended to give employers a free pass to continue to employ workers infinitely with absolutely no risk that they will ever have to pay for a work injury. The defense is intended to apply to give a remedy to an employer who was unaware of a previous injury. It was never intended to protect an employer who became aware, and the McKay Court rightly held as much.
Technicality or Design? Our Constitution has safeguards built in for a reason. When an officer stops someone and lacks probable cause to believe a crime has been committed, and then unlawfully searches that person's car and finds drugs or other contraband, it is not a "technicality" that the person is set free and not convicted of a crime. It is exactly how our Constitution is supposed to work. When a case is pled down to a lesser offense because the state lacks the evidence to convict of the offense charged, that is not a "technicality," it is justice. When a minor is interrogated outside the presence of their parents or attorneys, or when a person is interrogated without being apprised of their rights, or when a vehicle or home is searched with neither a proper warrant nor a valid exception to a warrant, it is not a "technicality" to refuse to convict the accused, even if those things result in a confession, or evidence of a crime. The police are not allowed to violate the Constitution. Most of the time they are well trained and know that. Some officers reason that if they can get by with skirting those lines, a "guilty" person will be "taken off the streets." And too often people cheer this mentality rather than rightly being skeptical of it. Fewer officers outright lie, or flagrantly break the rules in order to secure a conviction, but that happens as well. When Thomas Jefferson famously said "it is better for ten guilty men to go free than for one innocent man to be imprisoned," this is what he was talking about. It is not just to allow rules to be broken to "get the bad guy." It is certainly not a "technicality." It is an abuse of the justice system and an affront to our entire way of life. What we casually refer to as "technicalities" are actually safeguards, put in place by the Founders, the courts, Congress and state lawmakers in order to ensure fair play. When you are charged with a crime, the government has the burden of proving your guilt beyond a reasonable doubt. When the government violates your rights in the process of gathering evidence, by requiring you to incriminate yourself, or searching your home or property without justification, the law punishes them and refuses to allow a conviction, even if the misconduct uncovered evidence of guilt. So I suppose "technicality" is right, in that "technically" the government cheated the system.
What conduct is disorderly? "Without provocation, uses to or of another person in such other person's presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person's presence, naturally tend to provoke violent resentment, that is, words commonly called 'fighting words.'" "Use any type of profane or lewd language in a public place that is offensive to another, causes another to become outraged and thus creates a turmoil." To whom does the law apply? The other instance in this case that made it somewhat different is that one person involved was a police officer. There was no allegation or even suggestion that others heard the offensive speech. Police officers, in general are held to a higher standard, as our Court of Appeals has said, relying on United States Supreme Court precedent: "Lastly, although the State argues that 'there should not be a different standard when opprobrious and abusive language is directed toward a police officer,' the Supreme Court of the United States and other federal courts have indicated that the fighting-words exception to constitutionally protected speech 'requires a narrower application in cases involving words addressed to a police officer.' This is because a 'properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to 'fighting words.'' Additionally, as the Supreme Court has further explained, 'the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.' Indeed, the freedom of individuals verbally to 'oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.'" Knowles v. State , 340 Ga.App. 274; 797 S.E.2d 197 (Ga.App. 2017) (citations omitted). This is perhaps more obvious when considering the facts of this case. When it comes to whether the language at issue was "threatening" language, my client was unarmed, whereas the officer in question had a firearm, a Taser, and pepper spray, along with other officers present or close by. If anyone should have felt threatened, it was my client. Finally, the Supreme Court of Georgia has held that "fighting words" is not so much a function of the specific words used, but whether the person on the receiving end of them considers them sufficient to provoke violence or breach of the peace: "OCGA § 16–11–39 (a) (1) does not reach any, let alone a substantial amount of, constitutionally protected conduct. As mentioned previously, a person may only be found guilty of disorderly conduct under OCGA § 16–11–39 (a) (1) based on allegedly tumultuous conduct when he or she 'acts in a ... tumultuous manner toward another person whereby such person is placed in reasonable fear of the safety of such person's life, limb, or health." The statute on its face contains no prohibition against any particular message being communicated, and it makes clear that the level of 'tumultuous' behavior necessary to give rise to a sustainable charge must involve acts that would place another person in reasonable fear for his or her safety. In this sense, it could be argued that the statute applies only to physical 'acts' that do not implicate speech at all." Freeman v. State , 302 Ga. 181; 805 S.E.2d 845 (2017). On a side note, 2017 was apparently a banner year for free speech in Georgia. So I can cuss out police officers with impunity, right? Not so fast. First, the fact that the words in the above cases, like the words in my case, did not amount to "fighting words," does not in any way mean that other words might not. Use of racial slurs, threats, comments about the officer's family, or other such words might lead reviewing courts to apply the statute or municipal code differently. As a general rule, it is best not to go around cursing at anyone, let alone someone who can arrest you and put you in jail, however temporarily. Second, even if you are Constitutionally protected, my client had to be arrested, go to jail, bond out, and hire me to get out of this predicament. Whether he could sue the municipality in question and win is perhaps a legitimate question. What he would get out of that is perhaps the bigger question. You can sue someone and "win," yet still "lose" in the sense that it costs you more to litigate than you can possibly recover. So the fact that my client did not commit a crime does not mean his conduct was helpful, or worth the trouble. I believe he would be the first to tell you that. Third, let's suppose the prosecutor in question was disinclined to dismiss the charges. My client would have to stand trial, risking a conviction and sentence on both charges. If convicted, he would have to appeal. By the time this case wound its way to the state Supreme Court (I'd like to think this case would not rise to the Federal level), we are no longer talking about thousands of dollars, but tens of thousands of dollars. And while I think the dismissal of the charges is a good indication that he would probably win, at least on appeal if not at trial, once you go before the judge there are no guarantees. So why was there no conviction on resisting arrest? Good question! In this case, there is no question my client resisted arrest. However, the arrest in question was for disorderly conduct, a crime he did not commit, and which the officers lacked probable cause to believe he committed. It is not a crime to resist an unlawful arrest. Because the unlawful arrest led to the charge of resisting, that charge could not stand either. So you think it's okay to swear at police officers? Not at all! I don't blame the officer in this case for being upset at the language used. I don't blame her for thinking this might be disorderly conduct (everyone makes mistakes). Police officers have a tough job, and as noted above, are held to a higher standard than you or I. It's not an easy thing to listen to someone verbally accost you and have to just swallow your pride and take it. But that, ultimately, is what the law required in this case, on these facts. The fact that something is not a crime does not mean it is advisable. We all have bad days. My client had a bad day when he was arrested. The officer had a bad day when she made an unlawful arrest on charges that were ultimately dismissed in the interests of justice. The city had a bad day in that it had to bring charges, house my client, process bond, and ultimately have a prosecutor paid by the city come in and dismiss the charges, so a lot of time and money were wasted. But in the end, justice was done. I would like to think everyone can call that a good day. Each of us is better than our bad days. But if you have a bad day, know your rights so you can hopefully keep it from getting any worse.
Navigating Your DUI Defense: How an Attorney Can Help
Navigating DUI Charges: What You Need to Know
5 Common Mistakes to Avoid When Filing a Workers’ Compensation Claim
A frequent comment I get from workers' compensation inquirers is "I don't know if I even need a lawyer for this." And often, they are right. But how do you know? Often, a case where a lawyer should have been hired, but was not, is far more difficult and far less likely to end with the client treated fairly as compared to a case where a lawyer was hired from the start.
When charged with a crime, sometimes it's easy to assume that you have plenty of time to hire an attorney and defend the case. Sometimes, especially with a traffic citation, even a serious one like a DUI, you may even think you can handle it yourself. Be wary.
I am an attorney. I represent clients for a living. That means I have to do this in order to earn money to feed my family. But if that were the only reason I did it, I would lead an empty life indeed.
If you've never hired a lawyer before, it can sometimes be difficult to know what to expect. And the truth is, often what you can expect will differ depending on the type of lawyer you hire. In my practice, I am fortunate to help people who need assistance navigating difficult times in their lives. This means my clients are rarely calling me during the best times in their lives. This post will outline what I consider to be good legal service and competent representation, as well as the simple day-to-day handling of a particular case.