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Workers' Compensation Laws: Georgia

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A Q&A guide to workers' compensation law for employers in Georgia. This Q&A addresses Georgia laws requiring workers' compensation coverage, including the benefits process, penalties for an employer's failure to obtain workers' compensation coverage, and anti-retaliation provisions. Federal, local, or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Workers' Compensation Laws: State Q&A Tool)

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Workers' Compensation Laws: Georgia

  1. 1. © 2015 Thomson Reuters. All rights reserved. A Q&A guide to workers' compensation law for employers in Georgia. This Q&A addresses Georgia laws requiring workers' compensation coverage, including the benefits process, penalties for an employer's failure to obtain workers' compensation coverage and anti-retaliation provisions. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions. OVERVIEW OF STATE WORKERS' COMPENSATION LAW 1. Please provide a brief description of employers' obligations under your state's workers' compensation law (for example, obtaining workers' compensation coverage, posting a notice to employees). Please also: „„ Identify which employers are covered by the law and whether there are any exemptions. „„ Describe any limits or restrictions placed on covered employers (for example, prohibitions on terminating employees while they are receiving workers' compensation benefits or restrictions on when covered employers can use workplace drug tests). „„ Identify which employees are covered by the law and whether there are any exceptions. Are independent contractors and interns covered by the law? „„ State whether the law provides for a private right of action. „„ Identify the state agency or entity that administers the law. DESCRIPTION In Georgia, all employers employing three or more employees must either: „„ Obtain workers' compensation coverage. „„ Be self-insured. (Ga. Code Ann. § 34-9-2(a)(2).) Georgia employers must: „„ Maintain a list of at least six physicians or professional associations or corporations of physicians who are reasonably accessible to the employees. „„ Post this list in a prominent place on the business premises. „„ Take reasonable measures to ensure that employees understand both: „„ the function of the panel of physicians; and „„ their right to select a physician in case of injury. (Ga. Code Ann. § 34-9-201(b),(c); Ga. State Bd. of Workers' Comp. R. 201.) An employer must also post what is commonly referred to as the "Bill of Rights for the Injured Worker." This contains: „„ A summary of rights, benefits and obligations. „„ The rights and responsibilities of employees. (Ga. Code Ann. § 34-9-81.1; Ga. State Bd. of Workers' Comp. R. 81.1.) COVERED EMPLOYERS Georgia employers employing three or more employees in the regular course of business must obtain workers' compensation coverage (Ga. Code Ann. § 34-9-2(a)(2)). A non-exhaustive list of covered employers includes: „„ Any municipal corporation within the state. „„ Any individual, firm, association or public or private corporation engaged in any business. (Ga. Code Ann. § 34-9-1(3).) A sole proprietor is considered an employer, but may elect to be included as an employee if he is actively engaged in the operation of the business (Ga. Code Ann. § 34-9-2.2). LIMITS OR RESTRICTIONS FOR COVERED EMPLOYERS Georgia is an at-will employment state, and there is no restriction on terminating an employee who is receiving workers' compensation benefits. However, doing so may increase the employer's indemnity exposure because the employer forfeits the right to offer light-duty work and limit indemnity exposure. Workers' Compensation Laws: Georgia RODNEY R. MCCOLLOCH, MOORE INGRAM JOHNSON & STEELE LLP, WITH PRACTICAL LAW LABOR & EMPLOYMENT View the online version at http://us.practicallaw.com/w-000-3246
  2. 2. © 2015 Thomson Reuters. All rights reserved.2 Workers' Compensation Laws: Georgia Employers in Georgia must provide all employees and job applicants for employment notice of drug testing. Employers must only give this notice once. In addition to notice, employers must provide all employ- ees with a written policy statement. (Ga. Code Ann. § 34-9-414; see also State Q&A: Drug Testing Laws: Georgia (http://us.practicallaw. com/3-501-1662).) COVERED EMPLOYEES An "employee" for workers' compensation purposes is "[e]very person in the service of another under any contract of hire or apprenticeship, written or implied" (Ga. Code Ann. §§ 34-9-1(2) and 34-9-7). This includes employees in temporary or casual employment (Ga. Code Ann. § 34-9-2). The following are excluded: „„ Persons whose employment is not in the usual course of the trade, business, occupation or profession of the employer. „„ Domestic servants. „„ Real estate agents, as long as the agent has an employment contract providing that the agent is an independent contractor. (Ga. Code Ann § 34-9-2(a)(2).) For purposes of workers' compensation, an independent contractor is not a covered employee. A person is considered an independent contractor and not an employee if he: „„ Is a party to a contract, written or implied, intending to create an independent contractor relationship. „„ Has control over the time, manner and method of his work. „„ Is paid on a set price per job or a per unit basis (not an hourly basis or on a salary). (Ga. Code Ann § 34-9-2(e).) For more information on independent contractors in Georgia, see State Q&A, Independent Contractors: Georgia (http://us.practicallaw. com/8-505-6634). Employees may be joint employees of two or more employers when the injury occurs (U.S. Fire Ins. Co. v. City of Atlanta, 217 S.E. 2d 647, 648 (Ga. Ct. App. 1975)). PRIVATE RIGHT OF ACTION Georgia's workers' compensation law provides an employee and the employee's dependents a no-fault remedy for work-related injuries and deaths. This is an exclusive remedy as far as the employer is concerned and the law bars traditional common law tort actions (Ga. Code Ann. § 34-9-11). However, employees may bring an action against a person other than the employer when the circumstances create a legal liability (Ga. Code Ann. § 34-9-11.1). In addition, the "exclusive remedy" does not protect employers that are not required to maintain workers' compensation coverage. Therefore, an employee could sue an employer without workers' compensation coverage for a work injury. (Ga. Code Ann. §§ 34-9-11 and 34-9-11.1.) ADMINISTRATION The Georgia State Board of Workers' Compensation (the Board) ad- ministers the workers' compensation laws (Ga. Code Ann. § 34-9-40). The Board consists of a Trial Division that is made up of Administrative Law Judges (ALJ) who hear the cases at a bench trial (Ga. Code Ann. §§ 34-9-47 and 34-9-102(c)). Any party not satisfied with the ALJ ruling has a right to appeal to the Appellate Division, which consists of the Chair of the Board and two directors, who: „„ Have original appellate jurisdiction. „„ Accept the findings made by the ALJ that are supported by a preponderance of competent and credible evidence contained in the records. (Ga. Code Ann. §§ 34-9-47 and 34-9-103(a).) WORKERS' COMPENSATION COVERAGE 2. Please state whether an employer can opt out of workers' compensation coverage. Georgia employers may not opt out of coverage. However, up to five corporate officers, who are usually counted as employees, may opt out of coverage by giving written certification to either: „„ The insurer. „„ The Georgia State Board of Workers' Compensation. (Ga. Code Ann. § 34-9-2.1(a).) 3. Please describe an employer's options for obtaining workers' compensation coverage. If an employer can self-insure, please describe the requirements to qualify to self-insure. OBTAINING WORKERS' COMPENSATION COVERAGE Georgia employers may do any of the following: „„ Purchase workers' compensation insurance from a licensed insurer in Georgia. „„ Apply to be a qualified self-insurer. „„ Be part of a licensed self-insured employer association or "group fund." (Ga. Code Ann. § 34-9-121(a).) Group insurance fund coverage is available, with the approval of the state insurance commissioner, to: „„ Trade and professional organizations. „„ Groups of municipalities, counties, school boards and hospital authorities. (Ga. Code Ann. § 34-9-152.) Employers must file proof of compliance with the insurance provisions with the Georgia State Board of Workers' Compensation (the Board) (Ga. Code Ann. § 34-9-126). REQUIREMENTS FOR SELF-INSURANCE Employers wishing to self-insure must prove to the Board their "financial ability to pay the compensation directly in the amount and manner and when due" (Ga. Code Ann. § 34-9-121(a)). The Board has discretion to require the employer to pay a security, indemnity or bond to secure compensation liabilities as they are incurred (Ga. Code Ann. § 34-9-121(a)).
  3. 3. 3© 2015 Thomson Reuters. All rights reserved. Workers' Compensation Laws: Georgia Employers wishing to self-insure must: „„ Apply to the Self-Insurers Guaranty Trust Fund Board of Trustees. „„ Be approved by the Board. The Self-Insurers Guaranty Trust Fund Board sets the amount of the security as a surety bond or letter-of-credit (or, at their discretion, another form of security) in an amount no less than $250,000. (Ga. State Bd. of Workers' Comp. R. 121(b).) Groups engaged in similar business activities may establish a group self-insurance fund if the fund complies with Title 34, Chapter 5, Article 5 of the Official Code of Georgia. At least 30 days before executing the initial intrastate agreement, an authorized group must file with the Insurance Commissioner an intent to form a fund (Ga. Code Ann. §§ 34-9-151.1 and 34-9-151.2.) 4. Please identify which workplace injuries and illnesses are covered by workers' compensation. If there are key terms of art, please define them. WORKPLACE INJURIES AND ILLNESSES Georgia's workers' compensation laws cover: „„ Personal injuries. „„ Deaths. „„ Occupational diseases. For an accident or injury to be considered compensable, the employee must show that he sustained an injury arising out of and occurring in the course of his employment with the employer (Ga. Code Ann. § 34-9-1(4)). KEY TERMS OF ART Injury or Personal Injury Under Georgia's workers' compensation laws, an injury or a personal injury is an injury that: „„ Occurs by accident. „„ Arises out of and in the course of employment. It includes an aggravation of a pre-existing condition if the accident causing the aggravation arose out of and occurred in the course of the injured worker's employment. (Ga. Code Ann. § 34-9-1(4).) Injury does not include: „„ Injuries caused by the willful act of third persons directed against employees for personal reasons. „„ Heart diseases, heart attacks, failures or occlusions of coronary blood vessels, thromboses or strokes, unless it can be shown by a preponderance of competent and credible evidence that the illness is attributable to performing the usual work of the individual's employment. „„ Alcoholism and disabilities attributable to alcoholism. „„ Drug addiction or disabilities related to drug addiction, unless the addiction or disability resulted from the use of drugs or medicines prescribed for the treatment of the initial injury. (Ga. Code Ann. § 34-9-1(4).) Idiopathic injuries, which are personal in nature, without a known cause or spontaneous (for example, fainting or seizure disorders) and often do not arise out of the employment, are generally not compen- sable (Prudential Bank v. Moore, 467 S.E.2d 7, 8 (Ga. Ct. App. 1996)). There are special restrictions on claims for compensation for hernias or deaths resulting from hernia surgery. The following must be proven: „„ There was an injury resulting in a hernia. „„ The hernia appeared suddenly. „„ The hernia was accompanied by pain. „„ The hernia immediately followed an accident. „„ The hernia did not exist before the accident for which compensation is claimed. (Ga. Code Ann. § 34-9-266.) Occupational Disease An "occupational disease" is a disease arising out of and occurring in the course of the particular trade, occupation, process or employment in which the employee is exposed to the disease. For an occupational disease to be compensable, the following criteria must be met: „„ A direct causal connection must exist between work conditions and the disease. „„ The disease must have followed as a natural incident of employment exposure. „„ The disease must not have been of a character to which the em- ployee may have had substantial exposure outside of employment. „„ The disease must not have been an ordinary disease of life to which the general public is exposed. „„ The disease must have had its origin in a risk connected with the employment and must have flowed from that source as a natural consequence. (Ga. Code Ann. § 34-9-280.) Additionally, the disease must result from a hazard characteristic of the employment that is greater than the hazards of the disease oc- curring in employment generally (Ga. Code Ann. § 34-9-281). The following are not considered occupational diseases: „„ Partial loss of hearing caused by noise. „„ Psychiatric and psychological problems except where they arise from a separate occupational disease. (Ga. Code Ann. § 34-9-280.) Employees may receive benefits under Georgia's Workers Compensa- tion Laws for a mental disability or psychiatric problem if: „„ The disability or disease arose from an accident where the employee sustained a compensable physical injury. „„ The injury sustained contributed to the "continuation of the psychic trauma." The physical injury does not need to cause the psychic trauma. The psychic trauma is compensable if the physical injury contributes to its continuation. (Columbus Fire Dep't Columbus Consol. Gov't v. Ledford, 523 S.E. 2d 58, 61 (Ga. Ct. App. 1999).)
  4. 4. © 2015 Thomson Reuters. All rights reserved.4 Workers' Compensation Laws: Georgia WORKERS' COMPENSATION BENEFITS 5. Please briefly describe the workers' compensation benefits process. Please include information on: „„ When an employee must notify his employer of an injury or illness. „„ When an employer must submit information about an injury or illness to its carrier or the state agency or entity. „„ When a decision on compensation must be made. „„ The standard of review for determinations on compensation. „„ If a decision can be appealed, how a party appeals. BENEFITS PROCESS OVERVIEW Once the employee provides notice of an injury to the employer, the employer notifies its insurance carrier who must make a determination on the compensability of the claim. If the claim is acceptable as com- pensable, the employee will either receive income benefits, medical benefits or both. NOTIFYING THE EMPLOYER An employee or his representative must give notice of an injury to the employer either: „„ Immediately after the accident „„ As soon as is practical after the accident. (Ga. Code Ann. § 34-9-80.) No compensation will be paid to an employee unless the employee gives oral or written notice to the employer within: „„ 30 days after the accident occurs. „„ 30 days after the death resulting from the accident. (Ga. Code Ann. § 34-9-80.) The 30 day notice rule does not apply when: „„ The injured employees or their representatives gave notice in person to their employer or their agent, representative, foreman or immediate superior. „„ An employee prevented from providing notice due to a physical or mental incapacity. „„ An employee who is prevented from providing notice by fraud or deceit. „„ The employer has knowledge of the accident. „„ A reasonable excuse is made to the satisfaction of the Georgia State Board of Workers' Compensation (the Board) and the employer is not prejudiced by the lack of notice. (Ga. Code Ann. § 34-9-80.) WHEN TO SUBMIT INFORMATION An insured employer should look to the terms of the policy with their insurer concerning when they must report an injury. While there is not a statutory reporting requirement, an insured employer should provide notice to the insurer as soon as practically possible. WHEN A DECISION MUST BE MADE The employer or insurer has 21 days from when they know about the injury to investigate and decide whether to either: „„ Challenge the claim. „„ Accept the claim as compensable and pay benefits. (Ga. Code Ann. § 34-9-221.) STANDARD OF REVIEW Hearings before the ALJ must comport with due process but may be informal proceedings. During the hearing, the ALJ makes determina- tions of fact concerning the issues. (Ga. Code Ann. § 34-9-102(e).) Hearings before an ALJ require competent supporting evidence (Fox v. Liberty Mut. Ins. Co., 187 S.E.2d 305, 307 (Ga. Ct. App. 1972)). The appellate division must accept the ALJs findings of fact when the findings "are supported by a preponderance of competent and credible evidence contained within the records" (Ga. Code Ann. § 34-9-103(a)). APPEALING A DECISION Workers' compensation decisions may be appealed by filing an Appli- cation for Review and Enumeration of Errors with the Board. A party must file an appeal within 20 days of the date shown on the ALJ's award. (Ga. Code Ann. § 34-9-103.) 6. Please state whether the employer or employee has the right to choose the treating physician. Georgia employers must maintain a posted Panel of Physicians from which the claimant may choose a treating physician. The claimant has a right to a one-time change of physician to another physician on the panel. (Ga. Code Ann. § 34-9-201(b).) If an employer fails to maintain a valid panel, the claimant may obtain treatment from a physician of his choosing at the employer's expense (Ga. Code Ann. § 34-9-201(f)). 7. If an employee can be required to submit to a medical exami- nation, please identify which party is responsible for the cost of the examination. If an employee makes a workers' compensation claim after an injury, the employer may require the employee to submit to an examination: „„ At a reasonable time and place. „„ By a qualified physician or surgeon designated and paid by either: „„ the employer; „„ the insurer; or „„ the Georgia State Board of Workers' Compensation. (Ga. Code Ann. § 34-9-202(a).) This examination may include the following examinations: „„ Physical. „„ Psychiatric. „„ Psychological. (Ga. Code Ann. § 34-9-202(a).)
  5. 5. 5© 2015 Thomson Reuters. All rights reserved. Workers' Compensation Laws: Georgia 8. Please describe the types of benefits available to injured employees. For each, please: „„ State whether there is a waiting period before an employee is eligible to receive the benefit. If there is a waiting period, please identify the timeframe. „„ Provide a brief description of how the benefit is calculated. BENEFITS AVAILABLE TO INJURED EMPLOYEES Inured employees are eligible for: „„ Indemnity or Income Benefits. The following types of indemnity benefits are available to employees: „„ temporary total disability (TTD) (Ga. Code Ann. § 34-9-261); „„ temporary partial disability (TPD) (Ga. Code Ann. § 34-9-262); and „„ permanent partial disability (PPD). PPD benefits are not available if the employee is entitled to either TTD or TPD benefits. (Ga. Code Ann. § 34-9-263.) „„ Medical Benefits. Employees are entitled to receive payment for medical expenses that are: „„ reasonably required and appear likely to effect a cure, give relief or return the employee to suitable employment; „„ prescribed by an authorized physician (the authorized treating physician or one directly referred by the authorized treating physician); „„ for the employee's benefit; „„ due to the employee's compensable injury; and „„ the usual and customary charges (Ga. Code Ann. § 34-9-200). „„ Rehabilitation Benefits. Rehabilitation and vocational services must be provided to individuals who have sustained catastrophic injuries (Ga. Code Ann. § 34-9-200.1). The parties may agree in writing to provide rehabilitation benefits in non-catastrophic cases (Ga. Code Ann. § 34-9-200.1(h)). A catastrophic injury is any of the following: „„ A spinal cord injury involving severe paralysis of an arm, leg or the body. „„ An amputation of an arm, hand or leg. „„ A severe head or brain injury evidenced by: „„ severe sensory or motor disturbances; „„ severe communication disturbances; „„ severe complex integrated disturbances of cerebral function; „„ severe consciousness disturbances; „„ severe episodic neurological disorders; or „„ any other condition as severe as the above conditions. „„ A second or third degree burns on 25% of the body. „„ Third degree buns on 5% of the body. „„ Total or industrial blindness. „„ Any other severe injury that prevents the employee from performing his work in substantial numbers. (Ga. Code Ann. § 34-9-200.1(g).) Rehabilitation benefits are in addition to medical and disability ben- efits (Ga. Code Ann. § 34-9-200.1(a)). Rehabilitation services include: „„ The goods and services necessary for vocational assessment and evaluation. „„ Guidance and counseling. „„ Vocational planning, training and placement. „„ Medical management, planning and treatment. „„ Transportation. (Ga. State Bd. of Workers' Comp. R. 200.1(a)(1)(i).) WAITING PERIOD AND TIMEFRAME Indemnity or Income Benefits There is a seven-day waiting period for indemnity benefits (Ga. Code Ann. § 34-9-220). The waiting period for disability benefits begins: „„ On the first day that the injured employee is unable to work a full day. „„ If the employee was paid in full for the date on which the injury occurred, the next day. (Ga. State Bd. of Workers' Comp., R. 220(a).) The period runs for seven calendar days of disability (Ga. Code Ann. § 34-9-220). An employee is entitled to payment of disability income benefits for the first seven days of his disability once he has been disabled for 21 consecutive calendar days (Ga. Code Ann. § 34-9-220). The first payment of income benefits must be paid 21 days after the employer has knowledge of the injury or death. All income benefits then due must be paid. (Ga. Code Ann. § 34-9-221(b).) Additionally: „„ TTD benefits are payable for a maximum of 400 weeks from the date of injury (Ga. Code Ann. § 34-9-261). „„ TPD benefits are payable for a maximum of 350 weeks from the date of injury (Ga. Code Ann. § 34-9-262). Claimants cannot receive TTD and TPD benefits at the same time for the same injury (North Fulton Reg'l Hosp. v. Pearce-Williams, 718 S.E.2d 583, 586 (Ga. Ct. App. 2011)). PPD benefits begin once TTD or TPD benefits end (Ga. Code Ann. § 34-9-263(b)). For PPD benefits, employers must pay weekly income benefits equal to two-thirds of the employee's average weekly wage for the number of weeks determined by the percentage of either bodily loss or loss of use times the maximum weeks set out in Section 34-9-263(c) of the Official Code of Georgia. PPD benefits are subject to the same maximum and minimum limitations on weekly income benefits as TTD benefits laid out in Section 34-9-261 of the Official Code of Georgia. (Ga. Code Ann. § 34-9-263(c).) Medical Benefits There is no waiting period for medical benefits for a compensable injury (Ga. Code Ann. §§ 34-9-200 and 34-9-220).
  6. 6. © 2015 Thomson Reuters. All rights reserved.6 Workers' Compensation Laws: Georgia However, Georgia employers are only liable for medical benefits for an employee meeting the following criteria: „„ For injuries occurring on or after July 1, 2013 that are not considered catastrophic, the employee is entitled to a maximum of 400 weeks of medical benefits from the date of the injury. „„ For injuries occurring on or before June 30, 2013, and for injuries occurring on or after July 1, 2013 that are considered catastrophic, the employee is entitled medical benefits for life, as long as the benefits: „„ are reasonably required; and „„ appear likely to effect a cure, give relief or restore the employee to suitable employment. (Ga. Code Ann. § 34-9-200. Rehabilitation Benefits There is no waiting period for rehabilitation benefits. CALCULATION OF BENEFITS Indemnity or Income Benefits For injuries occurring after July 1, 2013, TTD benefits are two-thirds of the employee's average weekly wage: „„ Up to a maximum of $525 per week. „„ Not less than $50 per week, unless the weekly wage is below $50, in which case the benefit is the average weekly wage. This amount is payable for a maximum of 400 weeks from the date of injury. (Ga. Code Ann. § 34-9-261.) For injuries occurring after July 1, 2013, TPD benefits are two-thirds of the difference between the employee's average weekly wage before the injury and the average weekly wage the employee can earn after the injury, up to a maximum benefit of $350 per week. This amount is payable for a maximum of 350 weeks from the date of injury. (Ga. Code Ann. § 34-9-262.) PPD benefits are two-thirds of the employee's average weekly wage for the number of weeks determined by the percentage of either bodily loss or loss of use times the maximum weeks set out in Section 34-9-263(c) of the Official Code of Georgia. PPD benefits are subject to the same maximum and minimum limitations on weekly income benefits as TTD benefits laid out in Section 34-9-261 of the Official Code of Georgia. (Ga. Code Ann. § 34-9-263(c).) The average weekly wage is determined by: „„ Taking the average of the employee's wages for the full 13 weeks before the injury. „„ If the employee has not been employed for 13 weeks (or for the substantial portion of 13 weeks), by taking either: „„ the average weekly wage of a similarly situated employee; or „„ the "full-time" equivalent weekly wage of the claimant. (Ga. Code Ann. § 34-9-260.) The "full-time" weekly wage is calculated by multiplying the employee's hourly pay rate with the number of hours constituting a full-time workweek (O'Kelley v. Hall County Bd. of Ed, 532 S.E. 2d 427, 430 (Ga. Ct. App. 2000)). Medical Benefits There is no monetary limit on medical benefits, as long as the condi- tions of Section 34-9-200 of the Official Code of Georgia are met. The Board publishes an annual fee schedule of reasonable charges for medical services provided under the Workers' Compensation Act (Ga. Code Ann. § 34-9-205(b)). This fee schedule and its yearly updates can be found on the Board's website. Rehabilitation Benefits There is no monetary limit on rehabilitation benefits. PENALTIES 9. Please describe the possible penalties, both civil and criminal, for an employer's failure to obtain workers' compensation coverage or post a required notice. CIVIL PENALTIES If Georgia employers fail to obtain insurance, the employer is still liable for the payment of benefits (Crawford v. Holt, 323 S.E.2d 245, 246-247 (Ga. Ct. App. 1984)). If the employer becomes insolvent, then the employer's agent responsible for procuring workers' compensation benefits may be held personally liable for payment of the benefits (Sheehan v. Delaney, 521 S.E.2d 585, 586 (Ga. Ct. App. 1999)). In addition, employers violating the insurance or self-insurance provi- sions of the law (Ga. Code Ann. §§ 34-9-121 and 126(a)) are subject to a civil penalty between $500 and $5,000 for each violation (Ga. Code Ann. § 34-9-18(c)). Penalties for Failure to Pay Benefits Penalties for failure to pay income benefits fall into the following categories: „„ Benefits payable without an award. If any income benefits payable without an award are not paid when due, a 15% increase is added to the accrued income benefits. This amount must be paid at the same time as, and in addition to, the accrued income benefits unless: „„ the employer files notice that it contents the compensation (Ga. Code Ann. § 34-9-221(d)); or „„ the Georgia State Board of Workers' Compensation (the Board) excuses the nonpayment after the employer shows that the income benefits cannot be paid within the period prescribed due to conditions beyond the employer's control. (Ga. Code Ann. § 34-9-221(e).) „„ Benefits payable under the terms of an award. If income benefits payable under the terms of an award are not paid within 20 days after becoming due, a 20% increase is added to the accrued income benefits. This amount must be paid at the same time as, and in addition to, the accrued benefits unless:
  7. 7. 7© 2015 Thomson Reuters. All rights reserved. Workers' Compensation Laws: Georgia „„ the Board grants a review of the award; or „„ the Board excuses the nonpayment after the employer shows the income benefits cannot be paid within the period prescribed due to conditions beyond the employer's control. (Ga. Code Ann. § 34-9-221(f).) Employers or insurers must pay for: „„ Medical goods and services within 30 days from the date that the employer or the insurer receives the charges and reports required by the Board. „„ Mileage reimbursements within 15 days. (Ga. Code Ann. § 34-9-203(c)(1).) If an employer or insurer fails to make timely payments for medical or mileage expenses, the employer or insurer may be assessed the following penalties: „„ For any charges paid between 30 and 60 days after their due date, a 10% penalty is added to the charges. „„ For any charges paid between 60 and 90 days after their due date, a 20% penalty is added to the charges. „„ For any charges not paid within 90 days of their due date, the employer or insurer must pay both: „„ a 20% add-on penalty; and „„ interest on the combined amount at the rate of 12% per year from the ninety-first day after the date the charges were due until full payment is made. „„ All penalties and interest must be paid to the provider of the health care goods or services. (Ga. Code Ann. § 34-9-203(c)(3).) CRIMINAL PENALTIES Employers that are subject to Georgia's Worker's Compensation Act and that willfully neglect to comply with the filing requirements of the Act are guilty of a misdemeanor (Ga. Code Ann. § 34-9-126). ANTI-RETALIATION 10. If your state's workers' compensation law prohibits retaliation, please include information on: „„ What specific acts are protected. „„ How retaliation is defined. „„ What elements must be proven for an employee to prevail on a retaliation claim. „„ The defenses, if any, that are available to employers. „„ The statute of limitations for bringing a retaliation claim. In Georgia, retaliation or wrongful discharge tort claims as a result of employees seeking workers' compensation benefits are not viable causes of action (Evans v. Bibb Co., 342 S.E.2d 484, 485-486 (Ga. Ct. App. 1986)). However, there are federal causes of action for retaliation that may benefit particular workers. For more information on federal retaliation law, see Practice Note: Retaliation (http://us.practicallaw.com/5-501- 1430). WORKERS' COMPENSATION EXCLUSIVITY 11. Please identify the types of claims that are barred by workers' compensation law. If there are exceptions, please identify them. The rights and the remedies the Georgia Workers' Compensation Act (the Act) grants to an employee exclude all other rights and remedies of the employee, his personal representative, parents, dependents or next of kin for the injury, loss of service or death (Ga. Code Ann. § 34- 9-11(a)). The Act is mandatory and there is no right to elect remedies (Southern Wire & Iron, Inc. v. Fowler, 124 S.E. 2d 738, 740 (Ga. 1960)). However, there are several exceptions to the exclusive remedy doc- trine. If an injury does not actually arise out of or occur in the course of the employee's employment: „„ The Act provides no remedy. „„ The employee may bring a private action. (Ga. Code Ann. § 34-9-11(a); Stoker v. Wood, 289 S.E. 2d 265, 265 (Ga. Ct. App. 1982).) Additional exemptions include: „„ Intentional torts. The exclusive remedy doctrine generally bars an employee's claim against an employer for an intentional tort that seeks redress for current or future physical injury arising out of the employment (Johnson v. Hames Contracting, Inc., 431 S.E.2d 455, 458 (Ga. Ct. App. 1993)). Claims for injuries intentionally inflicted on an employee by a co-worker are also barred if the risk of injury was employment-related or neutral. However, these claims are likely allowed if the risk of injury was purely personal to the injured employee. (Ga. Code Ann. § 34-9-1(4); Zaytzeff v. Safety-Kleen Corp., 473 S.E.2d 565, 568 (Ga. Ct. App, 1996).) „„ Claims against third party tortfeasors. This does not include employees of the same employer or anyone who, under a contract with an employer, provides workers' compensation to an injured employee. (Ga. Code Ann. § 34-9-11(a)). „„ Claims against construction design professionals. Special immunity is given to architects, professional engineers, landscape architects, geologists, land surveyors and professional corporations organized to render those services, which are collectively referred to as construction design professionals (Ga. Code Ann. § 34-9- 11). However, immunity can be waived if the construction design professional specifically assumes the safety practices for the project in a written contract. Furthermore, the immunity does not apply to: „„ negligent preparation of design plans and specifications; „„ tortious acts of construction design professionals on the construction site; „„ any professional surveys set out in the contract; or „„ any intentional acts by the construction design professional or his employees. (Ga. Code Ann. § 34-9-11.)
  8. 8. 8 Workers' Compensation Laws: Georgia 8 Drafting and Negotiating Equity Commitment Letters Checklist 05-15 ABOUT PRACTICAL LAW Practical Law provides legal know-how that gives lawyers a better starting point. Our expert team of attorney editors creates and maintains thousands of up-to-date, practical resources across all major practice areas. We go beyond primary law and traditional legal research to give you the resources needed to practice more efficiently, improve client service and add more value. If you are not currently a subscriber, we invite you to take a trial of our online services at practicallaw.com. For more information or to schedule training, call 888.529.6397 or e-mail training.practicallaw@thomsonreuters.com. © 2015 Thomson Reuters. All rights reserved. Use of Practical Law websites and services is subject to the Terms of Use (http://us.practicallaw.com/2-383-6690) and Privacy Policy (http://us.practicallaw.com/8-383-6692). „„ Claims for property damage against the employer (Ga. Code Ann. § 34-9-11). However, these actions do not allow punitive or additional damages for aggravated circumstances when the action arises out of a compensable injury or death under the Act (Superb Carpet Mills, Inc. v. Thomason, 359 S.E.2d 370, 371-371 (Ga. Ct. App. 1987)). „„ Claims for professional negligence. Employees may have a tort action against a co-worker if the co-worker owes a duty and negligently breaches that duty, causing an injury (Davis v. Stover, 362 S.E.2d 97, 98 (Ga. Ct. App. 1998)). However, this does not allow suits against the employer through vicarious liability (Crisp Regional Hosp., Inc. v. Oliver, 621 S.E.2d 554, 557-558 (Ga. Ct. App. 2005)). „„ Employment related claims. A non-exhaustive list includes: „„ actions for breach of employment contract; „„ unemployment compensation; „„ intentional nonphysical torts (for example, those based on gender, race, age or disability); and „„ violations of the Fair Labor Standards Act, Labor Management Relations Act, immigration laws, Employee Retirement Income Security Act (ERISA), Polygraph Protection Act and the Migrant and Seasonal Agricultural Worker protection Act (Ga. Workers' Compensation Claims § 2:9). JOINT EMPLOYER LIABILITY 12. Please state whether your jurisdiction recognizes joint em- ployment under workers' compensation law. If so: „„ Can more than one employer receive the protection of the workers' compensation benefits bar to claims? „„ If available, please briefly describe the standard to determine joint employer status. JOINT EMPLOYMENT Georgia law recognizes joint employment for workers' compensation purposes (Ga. Code Ann. § 34-9-224). PROTECTION FOR MULTIPLE EMPLOYERS A claimant who proceeds against and receives compensation from one employer is precluded from bringing any common law action against any remaining employer or employers (Scott v. Savannah Elec. & Power Co., 66 S.E.2d 179, 182 (Ga. Ct. App. 1951)). STANDARD FOR JOINT EMPLOYER STATUS Employers are joint employers when an employee is in the joint service of two or more employers subject to the Act (Ga. Code Ann. § 34-9- 224). There must be an employer-employee relationship between the claimant and each of the alleged employers, and both employers must have had some control over the time, manner and method of the employee's work at the time of the injury (Dep't. of Human Resources v. Demory, 227 S.E.2d 788, 789 (Ga. Code Ann. 1976)). ADDITIONAL RESOURCES 13. If the state agency charged with oversight of the workers' compensation law in your state has useful online guidance or forms, please provide the link for those resources and a brief description of them. The Georgia State Board of Worker's Compensation provides useful information and forms on its website. The Board's Integrated Claims Management System provides online claims filing, processing, claim management, managed care and rehabilitation functions, online reporting, correspondence generation and notifications on its website.

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