Can Your Employer Fire You While On Workers’ Comp?

Surprisingly, yes. While you were home recuperating from your on-the-job injury, you may have thought you were safe from getting fired by your employer. Then came the registered letter in the mail notifying you that your employer was terminating your employment. But, wait a minute. Doesn’t your Georgia workers’ comp claim protect you from getting fired? Unfortunately, the answer is no. Some employers immediately fire the injured worker, and other employers have policies that keep you on the employment rolls for 13 to 26 weeks according to their regulations to see if you’re released to regular duty work during that time period.  If you’re not released to regular duty by a certain time period, you’re let go. That doesn’t mean your workers’ comp claim is over. Workers’ comp will continue to pay you lost wage benefits until your doctor releases you to return to regular duty work.

Now let’s consider what will happen to you if you already returned to work with restrictions and were fired for cause. Start a job search immediately.  Until you start a job search you can’t start the clock running on entitlement to lost wage benefits. You must begin a job search for suitable light duty work and keep track of your job search with the date you looked for work, the name of the employer, the position applied for, who you spoke to, if you filled out an application, and if you had an interview. To get your weekly lost wage benefits reinstated, the judge must find that your job search is continuous, sincere and done in good faith. You need to apply with at least 2 to 3 employers each week until your hearing and I recommend 3 to 5 employers and don’t stop looking even though it’s discouraging. If there are few places of business where you reside, you may be re-applying at the same businesses every 2 to 3 months until your hearing. If the business tells you to check back, please do so. It’s important to prove that you are giving your best efforts. You need to memorize your work restrictions or make several copies of it to attach to a job application. Today, most job applications are completed online and there may be no space to indicate your restrictions. But if there is, you need to be prepared to list your restrictions or to attach or download a copy of your restrictions. This is another necessary element to prove entitlement to lost wage benefits, although it may seem counterintuitive in looking for a job.

If you have questions about being fired while on workers’ comp benefits Affleck & Gordon offers a free consultation and our experienced workers’ comp attorneys are just a phone call 404-373-1649 or click away.

Workers’ Comp Insurance Company Didn’t Offer Enough Settlement Money, but a Judge Can’t Order a Settlement

You turned down the settlement offer by the workers’ comp insurance company. It wasn’t enough money. It barely covered your lost wages and medical but nothing for the future, and you have a lot of other bills that you want to pay off and get out of the hole. You have a decent case and your chances of winning are better than the insurance company’s chances, so you’re thinking you’ll have a better chance getting the judge to order the insurance company to pay you a lump sum settlement. But, wait, unfortunately, the judge can’t order the insurance company to pay you a nice, lump sum settlement.  Lump-sum settlement is only by agreement of the parties – you and the insurance company. The only authority the judge has is to decide whether your case is not compensable or compensable. If it’s compensable or a covered case, the judge will order payment of lost wages and medical benefits accordingly. A  workers’ comp judge can’t award a lump sum settlement. However, you may be owed a past due amount of lost wage benefits.  For example, you have been disabled and out of work for 12 weeks from 01/11/2017 to 04/05/2017 and entitled to $500 per week or $6,000 in past-due lost wage benefits. The employer and its insurer may be entitled to a credit of $330 per week for payment of unemployment benefits for those 12 weeks or $3,960 with a remaining past-due amount of $2040 still owed.  Your medical bills were $5,000 and the settlement offer was $7,500.  At a hearing, the judge is authorized to order payment of past-due lost wage benefits, minus any credit due employer and it’s insurer, or $2,040, and direct the insurer to pay your medical providers directly. The insurer will conform the medical bills to Fee schedule and pay less than the full amount. The judge orders a lump sum of $2346 payable to you ($2,040 in lost wages and 15%  or $306 in late penalties). The judge’s order also provides for continuing lost wage benefits. However, these benefits are subject to suspension if the employer offers suitable light duty or the authorized doctor releases you to regular duty.

Keep in mind that any amounts payable to an injured worker and ordered by a workers’ comp judge are generally accrued past-due lost wages and not a lump sum of benefits.  However, there is a provision to request an advance of future weekly benefits to prevent dire financial hardship. Generally, in our experience, the State Board has awarded lump sum advances of $1,000 to $4,000 for household medical bills and car repairs and in a rare instance $7,800 to save a client’s home. Certain prerequisites must be met including that 1) you must have received at least 26 weeks of weekly lost wage benefits; 2) there must be a proper application for the lump sum payment containing certain verified information and documentation; and 3) proper basis must exist to the satisfaction of the state board the lump sum is either in your best interests to prevent extreme financial hardship or is essential to your rehabilitation.

You are required to repay the lump sum with interest at 7% per year to be paid by shortening the period during which permanent partial disability benefits are paid in the future or by reducing your existing lost wage benefits until the advance is paid.

Top 10 Reasons Adjusters Use to Deny Your Workers’ Comp Claim

1.   No accident arising out of and in the course of employment – Adjuster alleges that you did not suffer an accidental injury while at work.  Sometimes this means there was no accident and sometimes it means you may have a condition that is not work-injury related.
2.   Intoxication or drugs – Adjuster claims that although there was an accident, they don’t have to pay you because you ingested alcohol or drugs which is what caused the accident.
3.   Horseplay or willful misconduct – Adjuster claims although there was an accident, once again they don’t have to pay you. In the case of horseplay, you were the instigator and not an innocent bystander. And in the case of willful misconduct, for example, the adjuster claims you obstinately refused to wear a safety harness, and not just forgot, which resulted in the accident.
4.   Scheduled lunch or rest break – Adjuster claims that you were injured when you were on a regularly scheduled lunch or rest break and had freedom of action to do what you wanted during your break including leave the premises.
5.   Deviation or detour – Adjuster claims that you were injured when you deviated or took a detour from your employment duties to engage in a personal mission.
6.   Idiopathic condition – Adjuster claims that you were injured by a condition that is personal to you. For example, you passed out due to a seizure and fell and hurt your back on the floor.  Because the seizures are personal to you, the fall is not covered.  However, the back injury would be covered if your back struck a table, desk or piece of machinery as you fell.
7.   Independent contractor – Adjuster denies your claim because you are not an employee.  In order to be covered by workers’ comp, there must be an employee-employer relationship.  Many employers try to avoid paying for workers’ comp insurance by alleging that their employees are independent contractors when they are actually employees.  Does the company have “the right” to control what you do?  Does the company have the right to tell you what time to be at work, what to wear, what to do, when to do it, and how to do it? The determining factor is whether the company has the right to exercise control over you, even if the company doesn’t actually use it.
8.   Statute of limitations bar or no notice defense – Adjuster denies your claim because the statute of limitations has run. There’s a one year statute of limitations that runs from the date of accident. If the insurer paid medical benefits, the statute of limitations is extended from the last furnished remedial care.  This is tricky because not all medical treatment is considered remedial. Best practice is to file a WC-14 Notice of Claim within one year of your date of accident to toll the statute of limitations or talk to an attorney to determine when your statute of limitations runs. If you were paid temporary total or temporary partial disability benefits, there’s another statute of limitations to consider and that’s the two year statute if you become disabled within two years of last payment of temporary total or temporary partial disability benefits. To toll the two-year statute you will need to file a WC-14 Hearing Request seeking additional temporary total and/or temporary partial disability within last payment of such.
Adjuster denies your claim because you failed to notify your employer of your accident within 30 days. There are some exceptions for failure to give notice: 1) you were physically or mentally incapable, 2) you were prevented by fraud or deceit, 3) your employer or your immediate supervisor or foreman had knowledge of the accident, or 4) where you have a reasonable excuse for not giving such notice “to the satisfaction of the State Board of Workers’ Comp” and you reasonably prove “to the satisfaction of State Board of Workers’ Comp” that the employer had not been prejudiced thereby.
9.  No disability or “medical only” – Adjuster denies in part by disputing entitlement to lost wage benefits. Your claim is covered as a “medical only” claim but income benefits are not being paid either on the grounds that your authorized doctor released you to regular duty work or to light duty and your employer offered you suitable light duty work from the beginning.
10.  No insurance coverage – An employer who has fewer than 3 employees regularly in service in the same business within the State of Georgia is not subject to the Workers’ Compensation Act.  In that scenario, your employer is not required to carry workers’ comp insurance. You will need to talk to an attorney to determine whether your company should have workers’ comp.  Keep in mind that your boss has the right to exempt himself and some other employees from coverage.