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STATE Q&A
Workers’ Compensation Laws: Georgia
by Rodney R. McColloch, Moore Ingram Johnson & Steele, with Practical Law Labor & Employment
Status: Law stated as of 24 Sep 2021 | Jurisdiction: Georgia, United States
This document is published by Practical Law and can be found at: us.practicallaw.tr.com/w-000-3246
Request a free trial and demonstration at: us.practicallaw.tr.com/about/freetrial
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 (O.C.G.A. 
§ 34-9-2(a)(2)).
•	 Be self-insured (O.C.G.A. § 34-9-151.1).
Georgia employers must:
•	 Maintain a list of at least six physicians, professional
associations, or corporations of physicians who are
reasonably accessible to 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.
•	 Ensure that employees are given appropriate assistance
in contacting the panel of physicians.
(O.C.G.A. § 34-9-201(b), (c); GA ST Rule 201.)
An employer must also post what is commonly referred
to as the Bill of Rights for the Injured Worker. This
contains:
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).
Many states are modifying workers’ compensation laws in response to the occupational risks posed
by the 2019 novel coronavirus disease (COVID-19) pandemic. For information and ongoing updates,
see COVID-19: Employment Law and Development Tracker: State Laws and Directives.
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Workers’ Compensation Laws: Georgia
•	 A summary of rights, benefits, and obligations.
•	 The rights and responsibilities of employees.
(O.C.G.A. § 34-9-81.1(a); GA ST Rule 81.1.)
Covered Employers
Georgia employers employing three or more employees
in the regular course of business must obtain workers’
compensation coverage (O.C.G.A. § 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.
(O.C.G.A. § 34-9-1(3).)
A sole proprietor is considered an employer but may
elect to be included as an employee if the individual
is actively engaged in the operation of the business
(O.C.G.A. § 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.
Employers in Georgia must provide all employees and
job applicants for employment notice of drug testing.
Employers must only give this notice only once before
testing. In addition to notice, employers must provide
all employees with a written policy statement of the
employer’s substance abuse policy that includes:
•	 The types of testing an employee or job applicant may
be required to submit to including the basis used to
determine when testing will be required.
•	 The actions the employer may take following a positive
confirmed test result and the consequences of refusing
to submit to a drug test.
•	 A general statement concerning confidentiality.
•	 Information about any Employee Assistance Program,
if offered, or advising the employee of the employer’s
resource file of assistance programs and other persons,
entities, or organizations designed to assist employees
with personal or behavioral problems.
(O.C.G.A. § 34-9-414(a); see State Q&A: Drug Testing
Laws: Georgia.)
Covered Employees
An employee for workers’ compensation purposes is every
person in the service of another under any contract of
hire or apprenticeship, written or implied (O.C.G.A. 
§§ 34-9-1(2) and 34-9-7). This includes employees in
temporary or casual employment. The key inquiry regarding
the employment relationship is whether the employer
exercised control over the worker. (Brewer v. Pacific
Employers Ins. Co., 97 S.E.2d 643 (Ga. Ct. App. 1957)).
The following categories, among others, 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, if the agent has a written
employment contract providing that the agent is an
independent contractor.
(O.C.G.A. § 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 the employee:
•	 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 the
person’s work.
•	 Is paid on a set price per job or a per unit basis (not a
salary or hourly basis).
(O.C.G.A. § 34-9-2(e).)
For more information on independent contractors in Georgia,
see State Q&A, Independent Contractors: Georgia.
An employee may be a joint employee of two or more
employers when the injury occurs (O.C.G.A. § 34-9-224;
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
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Workers’ Compensation Laws: Georgia
exclusive remedy as far as the employer is concerned
and the law bars traditional common law tort actions
(O.C.G.A. § 34-9-11).
However, employees may bring an action against a person
other than the employer when the circumstances create a
legal liability (O.C.G.A. § 34-9-11.1(a)).
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.
Administration
The Georgia State Board of Workers’ Compensation
(SBWC) administers the workers’ compensation laws
(O.C.G.A. § 34-9-40).
The SBWC consists of a trial division that is made up of
administrative law judges (ALJ) who hear the cases at a
bench trial (O.C.G.A. §§ 34-9-47(c) and 34-9-102(c)). Any
party dissatisfied with the ALJ ruling has a right to appeal
to the appellate division, which consists of the chair of the
SBWC 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.
(O.C.G.A. §§ 34-9-47(b) 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.
(O.C.G.A. § 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.
(O.C.G.A. § 34-9-121(a).)
Group insurance fund coverage is available with the state
insurance commissioner’s approval to:
•	 Trade and professional associations.
•	 Groups of municipalities, counties, school boards, and
hospital authorities.
(O.C.G.A. § 34-9-152(a).)
Employers must file proof of compliance with the
insurance provisions with the Georgia State Board of
Workers’ Compensation (SBWC) (O.C.G.A. § 34-9-126(a)).
Requirements for Self-Insurance
Employers wishing to self-insure must prove to the SBWC
their financial ability to pay the compensation directly in the
amount and manner and when due (O.C.G.A. § 34-9-121(a)).
The SBWC has discretion to require the employer to pay a
security, indemnity, or bond to secure compensation liabilities
as they are incurred (O.C.G.A. § 34-9-121(a)).
Employers wishing to self-insure must:
•	 Apply on the form prescribed by the Self-Insurers
Guaranty Trust Fund Board of Trustees.
•	 Be approved by the SBWC.
(GA ST Rule 121(b).)
The Self-Insurers Guaranty Trust Fund Board of Trustees
sets the amount of the security as a surety bond,
letter-of-credit, or another form of security of at least
$250,000 (GA ST Rule 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 Office of Insurance
and Safety Fire Commissioner an intent to form a fund
(O.C.G.A. §§ 34-9-151.1 and 34-9-151.2(a).)
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Workers’ Compensation Laws: Georgia
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 the employee sustained an
injury arising out of and in the course of the employment.
(O.C.G.A. § 34-9-1(4); Frett v. State Farm Emp. Workers’
Comp., 844 S.E.2d 749, 752 (Ga. 2020).)
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 the employment.
(O.C.G.A. § 34-9-1(4).)
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,
but only for as long as the aggravation of the pre-existing
condition continues to be the cause of the disability
(O.C.G.A. § 34-9-1(4)).
An injury that occurs during an employee’s scheduled break
may be considered to be in the course of the employee’s
employment (Frett v. State Farm Emp. Workers’ Comp., 844
S.E.2d 749, 753 (Ga. June 16, 2020). 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, thrombosis, 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.
(O.C.G.A. § 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 compensable
(Chaparral Boats, Inc. v. Heath, 606 S.E.2d 567 (Ga. Ct.
App. 2004)).
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.
(O.C.G.A. § 34-9-266 and Hardware Mut. Cas.
Co. v. Sprayberry, 25 S.E.2d 74 (Ga. Ct. App 1943).)
Occupational Disease
An occupational disease is a disease arising out of and 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 employee 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.
(O.C.G.A. § 34-9-280(2).)
Additionally, the disease must result from a hazard
characteristic of the employment that is greater than the
hazards of the disease occurring in employment generally
(O.C.G.A. § 34-9-281(b)(1)).
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Workers’ Compensation Laws: Georgia
The following are not considered occupational diseases:
•	 Partial loss of hearing caused by noise.
•	 Except where they arise from a separate occupational
disease:
–
– psychiatric and psychological problems; and
–
– heart and vascular diseases.
(O.C.G.A. § 34-9-280.)
The Georgia State Board of Workers’ Compensation (SBWC)
has indicated that determining whether a COVID-19
infection should be compensable under the Workers’
Compensation Act would require an employee to satisfy the
same burden proof as any other occupational disease as
stated above (See State of Georgia Workers’ Compensation
COVID-19 Quick Guide).
Employees may receive benefits under Georgia’s workers’
compensation 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.
(Columbus Fire Dep’t/Columbus Consol. Gov’t v. Ledford,
523 S.E.2d 58, 61 (Ga. Ct. App. 1999).)
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,
523 S.E.2d at 61.)
Workers’ Compensation Benefits
5. Please briefly describe the workers’
compensation benefits process. Please
include information on:
•	 When an employee must notify an 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
In Georgia, once the employee provides notice of an injury
to the employer, the employer notifies its insurance carrier
who must determine the compensability of the claim. If
the claim is compensable, the employee will receive either
or both:
•	 Income benefits.
•	 Medical benefits.
Notifying the Employer
An employee or the employee’s representative must give
notice of an injury to the employer either:
•	 Immediately after the accident.
•	 As soon as is practical after the accident.
(O.C.G.A. § 34-9-80.)
No compensation will be paid to an employee unless the
employee or their representative gives oral or written
notice to the employer within either:
•	 30 days after the accident occurs.
•	 30 days after the death resulting from the accident.
(O.C.G.A. § 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 is prevented from providing notice due to
a physical or mental incapacity.
•	 An employee 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 (SBWC)
and the employer is not prejudiced by the lack of notice.
(O.C.G.A. § 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.
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Workers’ Compensation Laws: Georgia
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.
(O.C.G.A. § 34-9-221(d).)
Standard of Review
Hearings before an administrative law judge (ALJ)
must comport with due process but may be informal
proceedings. During the hearing, the ALJ makes fact
determinations concerning the issues. (O.C.G.A. 
§ 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 ALJ’s findings of fact when the findings are
supported by a preponderance of competent and credible
evidence contained within the records (O.C.G.A. 
§ 34-9-103(a)).
Appealing a Decision
Workers’ compensation decisions are appealed by filing
an application for review with the SBWC. A party must file
an appeal within 20 days of the date shown on the ALJ’s
award. (O.C.G.A. § 34-9-103(a).)
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.
(O.C.G.A. § 34-9-201(b)(1).)
If an employer fails to maintain a valid panel, the
claimant may obtain treatment from a physician of
the claimant’s choosing at the employer’s expense
(O.C.G.A. § 34-9-201(f)).
7. If an employee can be required to submit
to a medical examination, please identify
which party is responsible for the cost of the
examination.
In Georgia, 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:
–
– the employer;
–
– the insurer; or
–
– the Georgia State Board of Workers’ Compensation.
(O.C.G.A. § 34-9-202(a).)
This examination may include the following examinations:
•	 Physical.
•	 Psychiatric.
•	 Psychological.
(O.C.G.A. § 34-9-202(a).)
If the employee requests an examination within 120 days
of receiving workers’ compensation income benefits, the
employer is required to pay (GA ST Rule 202).
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 in Georgia are eligible for:
•	 Indemnity or Income Benefits. The following types of
indemnity benefits are available to employees:
–
– temporary total disability (TTD) (O.C.G.A. 
§ 34-9-261);
–
– temporary partial disability (TPD) (O.C.G.A. 
§ 34-9-262); and
–
– permanent partial disability (PPD). Because an
injured worker can only collect one type of workers’
compensation benefits at a time, PPD benefits can
only be commenced after the employee’s TTD or
TPD benefits have been suspended. (O.C.G.A. 
§ 34-9-263.)
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Workers’ Compensation Laws: Georgia
•	 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, customary, and reasonable charges.
(O.C.G.A. §§ 34-9-200 and 34-9-205.)
•	 Rehabilitation Benefits. Rehabilitation services must be
provided to individuals who have sustained catastrophic
injuries (O.C.G.A. § 34-9-200.1). The parties may agree
in writing to provide rehabilitation benefits in non-
catastrophic cases (O.C.G.A. § 34-9-200.1(h)).
•	 Death Benefits: This compensation refers to death of
an employee resulting from injury and other causes or
a penalty for death of an employee from injury caused
by intentional act of the employer or payment of death
benefits where there are no dependents. The maximum
death benefit a sole dependent surviving spouse may
receive is $270,000. This cap only applies when the
claimant is a sole surviving spouse with no minor
dependents. (O.C.G.A. § 34-9-265.)
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, foot, 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.
•	 Second or third degree burns over 25% of the body as a
whole.
•	 Third degree burns to 5% or more of the face or hands.
•	 Total or industrial blindness.
•	 Any other severe injury that prevents the employee from
performing:
–
– the employee’s work; or
–
– other work that the employee is qualified for that is
available in substantial numbers.
(O.C.G.A. § 34-9-200.1(g).)
Rehabilitation benefits are in addition to medical
and disability benefits (O.C.G.A. § 34-9-200.1(a)).
Rehabilitation services include:
•	 Coordination of medical care.
•	 Vocational counseling, exploration, and assessment.
•	 Job analysis, development, modification, and
placement.
•	 Evaluation of social, medical, vocational, psychological,
and psychiatric information.
•	 Transportation.
•	 Housing.
•	 Additional services on agreement of the parties
or Georgia State Board of Workers’ Compensation
(SBWC) order.
(GA ST Rule 200.1(I), (II)(C)(2).)
Waiting Period and Timeframe
Indemnity or Income Benefits
There is a seven-day waiting period for indemnity benefits
(O.C.G.A. § 34-9-220).
The waiting period for disability benefits begins either:
•	 On the first day that the injured employee cannot work
a full day.
•	 If the employee was paid in full for the date of injury, the
next day.
(GA ST Rule 220(a).)
An employee is entitled to payment of disability income
benefits for the first seven days of the employee’s
disability once the employee has been disabled for
21 consecutive calendar days (O.C.G.A. § 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.
(O.C.G.A. § 34-9-221(b).)
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Workers’ Compensation Laws: Georgia
Additionally:
•	 TTD benefits are payable for a maximum of 400 weeks
from the date of injury (O.C.G.A. § 34-9-261).
•	 TPD benefits are payable for a maximum of 350 weeks
from the date of injury (O.C.G.A. § 34-9-262).
Claimants cannot receive TTD and TPD benefits
at the same time for the same injury (N. 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
(O.C.G.A. § 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 O.C.G.A. § 34-9-263(c).
PPD benefits are subject to the same maximum and
minimum limitations on weekly income benefits
as TTD benefits laid out in O.C.G.A. § 34-9-261.
(O.C.G.A. § 34-9-263(c).)
Medical Benefits
There is no waiting period for medical benefits for a
compensable injury (O.C.G.A. §§ 34-9-200 and 34-9-
220).
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. The maximum
length does not apply to claims for long term medical
devices that typically require maintenance or revisions
over time.
•	 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, if the benefits:
–
– are reasonably required; and
–
– appear likely to effect a cure, give relief, or restore the
employee to suitable employment.
(O.C.G.A. § 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, 2019, TTD benefits are
two-thirds of the employee’s average weekly wage:
•	 Up to a maximum of $675 per week.
•	 At least $50 per week, unless the weekly wage is
below $50, in which case the benefit is the average
weekly wage.
(O.C.G.A. § 34-9-261.)
This amount is payable for a maximum of 400 weeks from
the date of injury (O.C.G.A. § 34-9-261).
For injuries occurring after July 1, 2019, 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 $450 per week. This amount is
payable for a maximum of 350 weeks from the date of
injury. (O.C.G.A. § 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 O.C.G.A. § 34-9-263(c). PPD
benefits are subject to the same maximum and minimum
limitations on weekly income benefits as TTD benefits laid
out in O.C.G.A. § 34-9-261. (O.C.G.A. § 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.
(O.C.G.A. § 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 Cty. Bd.
of Ed., 532 S.E.2d 427, 430 (Ga. Ct. App. 2000)).
Medical Benefits
There is no monetary limit on medical benefits, if the
conditions of O.C.G.A. § 34-9-200 are met. The SBWC
9 Practical Law
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Workers’ Compensation Laws: Georgia
publishes an annual fee schedule of reasonable charges
for medical services provided under the workers’
compensation law (O.C.G.A. § 34-9-205(b)). This fee
schedule and its yearly updates can be found on their
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, 246-47 (Ga. Ct.
App. 1984)). If the employer becomes insolvent, 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 provisions of the law are subject to a civil
penalty between $500 and $5,000 for each violation
(O.C.G.A. §§ 34-9-18(c), 34-9-121, and 34-9-126(a)).
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 contests the
compensation (O.C.G.A. § 34-9-221(d)); or
–
– the Georgia State Board of Workers’ Compensation
(SBWC) 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.
(O.C.G.A. § 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 the SBWC:
–
– grants a review of the award; or
–
– 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.
(O.C.G.A. § 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 the SBWC requires.
•	 Mileage reimbursements within 15 days.
(O.C.G.A. § 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 more than 30 days after their due
date but within 60 days, a 10% penalty is added to the
charges.
•	 For any charges paid more than 60 days after their due
date but within 90 days, 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 91st day after the date the charges
were due until full payment is made.
(O.C.G.A. § 34-9-203(c)(3).)
All penalties and interest must be paid to the provider
of the health care goods or services (O.C.G.A. 
§ 34-9-203(c)(3)).
Criminal Penalties
Employers subject to Georgia’s workers’ compensation
laws that willfully neglect to comply with filing
requirements are guilty of a misdemeanor (O.C.G.A. 
§ 34-9-126(b)).
10 Practical Law
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Workers’ Compensation Laws: Georgia
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
resulting from employees seeking workers’ compensation
benefits are not viable causes of action (Evans v. Bibb Co.,
342 S.E.2d 484, 485-86 (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.
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 remedies Georgia’s workers’ compensation
law grants to an employee exclude all other rights and
remedies of the employee, the employee’s personal
representative, parents, dependents, or next of kin for:
•	 Injury.
•	 Loss of service.
•	 Death.
(O.C.G.A. § 34-9-11(a).)
The Georgia workers’ compensation law is mandatory
and there is no right to elect remedies (S. Wire & Iron,
Inc. v. Fowler, 124 S.E.2d 738, 740 (Ga. 1962)).
There are several exceptions to this exclusive remedy
doctrine. If an injury does not actually arise out of or occur
in the course of the employee’s employment:
•	 The workers’ compensation law provides no remedy.
•	 The employee may bring a private action.
(Connell v. Head, 559 S.E.2d 73, 75 (Ga. Ct. App. 2002).)
Additional exemptions include:
•	 Intentional torts. The exclusive remedy doctrine
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. (O.C.G.A. § 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
(O.C.G.A. § 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 (O.C.G.A. § 34-9-11).
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 the professional’s employees.
(O.C.G.A. § 34-9-11.)
•	 Claims for property damage against the employer.
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 GWCA. (O.C.G.A. § 34-9-11); Superb
Carpet Mills, Inc. v. Thomason, 359 S.E.2d 370, 371-72
(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. 1987)).
However, this does not allow suits against the employer
Workers’ Compensation Laws: Georgia
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
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referenceattorneys@tr.com.
through vicarious liability (Crisp Reg’l 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,
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 employment 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 (O.C.G.A. § 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 Georgia’s
workers’ compensation law (O.C.G.A. § 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 Res. v. Demory, 227 S.E.2d 788,
789 (Ga. Ct. App. 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 Workers’ Compensation
(SBWC) provides useful information and forms on its
website.
The SBWC’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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Workers compensation laws Georgia

  • 1. © 2021 Thomson Reuters. All rights reserved. Use of Practical Law websites and services is subject to the Terms of Use (static.legalsolutions.thomsonreuters.com/static/agreement/westlaw-additional-terms.pdf) and Privacy Policy (a.next.westlaw.com/Privacy). STATE Q&A Workers’ Compensation Laws: Georgia by Rodney R. McColloch, Moore Ingram Johnson & Steele, with Practical Law Labor & Employment Status: Law stated as of 24 Sep 2021 | Jurisdiction: Georgia, United States This document is published by Practical Law and can be found at: us.practicallaw.tr.com/w-000-3246 Request a free trial and demonstration at: us.practicallaw.tr.com/about/freetrial 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 (O.C.G.A.  § 34-9-2(a)(2)). • Be self-insured (O.C.G.A. § 34-9-151.1). Georgia employers must: • Maintain a list of at least six physicians, professional associations, or corporations of physicians who are reasonably accessible to 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. • Ensure that employees are given appropriate assistance in contacting the panel of physicians. (O.C.G.A. § 34-9-201(b), (c); GA ST Rule 201.) An employer must also post what is commonly referred to as the Bill of Rights for the Injured Worker. This contains: 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). Many states are modifying workers’ compensation laws in response to the occupational risks posed by the 2019 novel coronavirus disease (COVID-19) pandemic. For information and ongoing updates, see COVID-19: Employment Law and Development Tracker: State Laws and Directives.
  • 2. 2 Practical Law © 2021 Thomson Reuters. All rights reserved. Use of Practical Law websites and services is subject to the Terms of Use (static.legalsolutions.thomsonreuters.com/static/agreement/westlaw-additional-terms.pdf) and Privacy Policy (a.next.westlaw.com/Privacy). Workers’ Compensation Laws: Georgia • A summary of rights, benefits, and obligations. • The rights and responsibilities of employees. (O.C.G.A. § 34-9-81.1(a); GA ST Rule 81.1.) Covered Employers Georgia employers employing three or more employees in the regular course of business must obtain workers’ compensation coverage (O.C.G.A. § 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. (O.C.G.A. § 34-9-1(3).) A sole proprietor is considered an employer but may elect to be included as an employee if the individual is actively engaged in the operation of the business (O.C.G.A. § 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. Employers in Georgia must provide all employees and job applicants for employment notice of drug testing. Employers must only give this notice only once before testing. In addition to notice, employers must provide all employees with a written policy statement of the employer’s substance abuse policy that includes: • The types of testing an employee or job applicant may be required to submit to including the basis used to determine when testing will be required. • The actions the employer may take following a positive confirmed test result and the consequences of refusing to submit to a drug test. • A general statement concerning confidentiality. • Information about any Employee Assistance Program, if offered, or advising the employee of the employer’s resource file of assistance programs and other persons, entities, or organizations designed to assist employees with personal or behavioral problems. (O.C.G.A. § 34-9-414(a); see State Q&A: Drug Testing Laws: Georgia.) Covered Employees An employee for workers’ compensation purposes is every person in the service of another under any contract of hire or apprenticeship, written or implied (O.C.G.A.  §§ 34-9-1(2) and 34-9-7). This includes employees in temporary or casual employment. The key inquiry regarding the employment relationship is whether the employer exercised control over the worker. (Brewer v. Pacific Employers Ins. Co., 97 S.E.2d 643 (Ga. Ct. App. 1957)). The following categories, among others, 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, if the agent has a written employment contract providing that the agent is an independent contractor. (O.C.G.A. § 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 the employee: • 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 the person’s work. • Is paid on a set price per job or a per unit basis (not a salary or hourly basis). (O.C.G.A. § 34-9-2(e).) For more information on independent contractors in Georgia, see State Q&A, Independent Contractors: Georgia. An employee may be a joint employee of two or more employers when the injury occurs (O.C.G.A. § 34-9-224; 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
  • 3. 3 Practical Law © 2021 Thomson Reuters. All rights reserved. Use of Practical Law websites and services is subject to the Terms of Use (static.legalsolutions.thomsonreuters.com/static/agreement/westlaw-additional-terms.pdf) and Privacy Policy (a.next.westlaw.com/Privacy). Workers’ Compensation Laws: Georgia exclusive remedy as far as the employer is concerned and the law bars traditional common law tort actions (O.C.G.A. § 34-9-11). However, employees may bring an action against a person other than the employer when the circumstances create a legal liability (O.C.G.A. § 34-9-11.1(a)). 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. Administration The Georgia State Board of Workers’ Compensation (SBWC) administers the workers’ compensation laws (O.C.G.A. § 34-9-40). The SBWC consists of a trial division that is made up of administrative law judges (ALJ) who hear the cases at a bench trial (O.C.G.A. §§ 34-9-47(c) and 34-9-102(c)). Any party dissatisfied with the ALJ ruling has a right to appeal to the appellate division, which consists of the chair of the SBWC 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. (O.C.G.A. §§ 34-9-47(b) 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. (O.C.G.A. § 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. (O.C.G.A. § 34-9-121(a).) Group insurance fund coverage is available with the state insurance commissioner’s approval to: • Trade and professional associations. • Groups of municipalities, counties, school boards, and hospital authorities. (O.C.G.A. § 34-9-152(a).) Employers must file proof of compliance with the insurance provisions with the Georgia State Board of Workers’ Compensation (SBWC) (O.C.G.A. § 34-9-126(a)). Requirements for Self-Insurance Employers wishing to self-insure must prove to the SBWC their financial ability to pay the compensation directly in the amount and manner and when due (O.C.G.A. § 34-9-121(a)). The SBWC has discretion to require the employer to pay a security, indemnity, or bond to secure compensation liabilities as they are incurred (O.C.G.A. § 34-9-121(a)). Employers wishing to self-insure must: • Apply on the form prescribed by the Self-Insurers Guaranty Trust Fund Board of Trustees. • Be approved by the SBWC. (GA ST Rule 121(b).) The Self-Insurers Guaranty Trust Fund Board of Trustees sets the amount of the security as a surety bond, letter-of-credit, or another form of security of at least $250,000 (GA ST Rule 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 Office of Insurance and Safety Fire Commissioner an intent to form a fund (O.C.G.A. §§ 34-9-151.1 and 34-9-151.2(a).)
  • 4. 4 Practical Law © 2021 Thomson Reuters. All rights reserved. Use of Practical Law websites and services is subject to the Terms of Use (static.legalsolutions.thomsonreuters.com/static/agreement/westlaw-additional-terms.pdf) and Privacy Policy (a.next.westlaw.com/Privacy). Workers’ Compensation Laws: Georgia 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 the employee sustained an injury arising out of and in the course of the employment. (O.C.G.A. § 34-9-1(4); Frett v. State Farm Emp. Workers’ Comp., 844 S.E.2d 749, 752 (Ga. 2020).) 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 the employment. (O.C.G.A. § 34-9-1(4).) 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, but only for as long as the aggravation of the pre-existing condition continues to be the cause of the disability (O.C.G.A. § 34-9-1(4)). An injury that occurs during an employee’s scheduled break may be considered to be in the course of the employee’s employment (Frett v. State Farm Emp. Workers’ Comp., 844 S.E.2d 749, 753 (Ga. June 16, 2020). 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, thrombosis, 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. (O.C.G.A. § 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 compensable (Chaparral Boats, Inc. v. Heath, 606 S.E.2d 567 (Ga. Ct. App. 2004)). 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. (O.C.G.A. § 34-9-266 and Hardware Mut. Cas. Co. v. Sprayberry, 25 S.E.2d 74 (Ga. Ct. App 1943).) Occupational Disease An occupational disease is a disease arising out of and 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 employee 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. (O.C.G.A. § 34-9-280(2).) Additionally, the disease must result from a hazard characteristic of the employment that is greater than the hazards of the disease occurring in employment generally (O.C.G.A. § 34-9-281(b)(1)).
  • 5. 5 Practical Law © 2021 Thomson Reuters. All rights reserved. Use of Practical Law websites and services is subject to the Terms of Use (static.legalsolutions.thomsonreuters.com/static/agreement/westlaw-additional-terms.pdf) and Privacy Policy (a.next.westlaw.com/Privacy). Workers’ Compensation Laws: Georgia The following are not considered occupational diseases: • Partial loss of hearing caused by noise. • Except where they arise from a separate occupational disease: – – psychiatric and psychological problems; and – – heart and vascular diseases. (O.C.G.A. § 34-9-280.) The Georgia State Board of Workers’ Compensation (SBWC) has indicated that determining whether a COVID-19 infection should be compensable under the Workers’ Compensation Act would require an employee to satisfy the same burden proof as any other occupational disease as stated above (See State of Georgia Workers’ Compensation COVID-19 Quick Guide). Employees may receive benefits under Georgia’s workers’ compensation 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. (Columbus Fire Dep’t/Columbus Consol. Gov’t v. Ledford, 523 S.E.2d 58, 61 (Ga. Ct. App. 1999).) 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, 523 S.E.2d at 61.) Workers’ Compensation Benefits 5. Please briefly describe the workers’ compensation benefits process. Please include information on: • When an employee must notify an 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 In Georgia, once the employee provides notice of an injury to the employer, the employer notifies its insurance carrier who must determine the compensability of the claim. If the claim is compensable, the employee will receive either or both: • Income benefits. • Medical benefits. Notifying the Employer An employee or the employee’s representative must give notice of an injury to the employer either: • Immediately after the accident. • As soon as is practical after the accident. (O.C.G.A. § 34-9-80.) No compensation will be paid to an employee unless the employee or their representative gives oral or written notice to the employer within either: • 30 days after the accident occurs. • 30 days after the death resulting from the accident. (O.C.G.A. § 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 is prevented from providing notice due to a physical or mental incapacity. • An employee 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 (SBWC) and the employer is not prejudiced by the lack of notice. (O.C.G.A. § 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.
  • 6. 6 Practical Law © 2021 Thomson Reuters. All rights reserved. Use of Practical Law websites and services is subject to the Terms of Use (static.legalsolutions.thomsonreuters.com/static/agreement/westlaw-additional-terms.pdf) and Privacy Policy (a.next.westlaw.com/Privacy). Workers’ Compensation Laws: Georgia 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. (O.C.G.A. § 34-9-221(d).) Standard of Review Hearings before an administrative law judge (ALJ) must comport with due process but may be informal proceedings. During the hearing, the ALJ makes fact determinations concerning the issues. (O.C.G.A.  § 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 ALJ’s findings of fact when the findings are supported by a preponderance of competent and credible evidence contained within the records (O.C.G.A.  § 34-9-103(a)). Appealing a Decision Workers’ compensation decisions are appealed by filing an application for review with the SBWC. A party must file an appeal within 20 days of the date shown on the ALJ’s award. (O.C.G.A. § 34-9-103(a).) 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. (O.C.G.A. § 34-9-201(b)(1).) If an employer fails to maintain a valid panel, the claimant may obtain treatment from a physician of the claimant’s choosing at the employer’s expense (O.C.G.A. § 34-9-201(f)). 7. If an employee can be required to submit to a medical examination, please identify which party is responsible for the cost of the examination. In Georgia, 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: – – the employer; – – the insurer; or – – the Georgia State Board of Workers’ Compensation. (O.C.G.A. § 34-9-202(a).) This examination may include the following examinations: • Physical. • Psychiatric. • Psychological. (O.C.G.A. § 34-9-202(a).) If the employee requests an examination within 120 days of receiving workers’ compensation income benefits, the employer is required to pay (GA ST Rule 202). 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 in Georgia are eligible for: • Indemnity or Income Benefits. The following types of indemnity benefits are available to employees: – – temporary total disability (TTD) (O.C.G.A.  § 34-9-261); – – temporary partial disability (TPD) (O.C.G.A.  § 34-9-262); and – – permanent partial disability (PPD). Because an injured worker can only collect one type of workers’ compensation benefits at a time, PPD benefits can only be commenced after the employee’s TTD or TPD benefits have been suspended. (O.C.G.A.  § 34-9-263.)
  • 7. 7 Practical Law © 2021 Thomson Reuters. All rights reserved. Use of Practical Law websites and services is subject to the Terms of Use (static.legalsolutions.thomsonreuters.com/static/agreement/westlaw-additional-terms.pdf) and Privacy Policy (a.next.westlaw.com/Privacy). Workers’ Compensation Laws: Georgia • 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, customary, and reasonable charges. (O.C.G.A. §§ 34-9-200 and 34-9-205.) • Rehabilitation Benefits. Rehabilitation services must be provided to individuals who have sustained catastrophic injuries (O.C.G.A. § 34-9-200.1). The parties may agree in writing to provide rehabilitation benefits in non- catastrophic cases (O.C.G.A. § 34-9-200.1(h)). • Death Benefits: This compensation refers to death of an employee resulting from injury and other causes or a penalty for death of an employee from injury caused by intentional act of the employer or payment of death benefits where there are no dependents. The maximum death benefit a sole dependent surviving spouse may receive is $270,000. This cap only applies when the claimant is a sole surviving spouse with no minor dependents. (O.C.G.A. § 34-9-265.) 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, foot, 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. • Second or third degree burns over 25% of the body as a whole. • Third degree burns to 5% or more of the face or hands. • Total or industrial blindness. • Any other severe injury that prevents the employee from performing: – – the employee’s work; or – – other work that the employee is qualified for that is available in substantial numbers. (O.C.G.A. § 34-9-200.1(g).) Rehabilitation benefits are in addition to medical and disability benefits (O.C.G.A. § 34-9-200.1(a)). Rehabilitation services include: • Coordination of medical care. • Vocational counseling, exploration, and assessment. • Job analysis, development, modification, and placement. • Evaluation of social, medical, vocational, psychological, and psychiatric information. • Transportation. • Housing. • Additional services on agreement of the parties or Georgia State Board of Workers’ Compensation (SBWC) order. (GA ST Rule 200.1(I), (II)(C)(2).) Waiting Period and Timeframe Indemnity or Income Benefits There is a seven-day waiting period for indemnity benefits (O.C.G.A. § 34-9-220). The waiting period for disability benefits begins either: • On the first day that the injured employee cannot work a full day. • If the employee was paid in full for the date of injury, the next day. (GA ST Rule 220(a).) An employee is entitled to payment of disability income benefits for the first seven days of the employee’s disability once the employee has been disabled for 21 consecutive calendar days (O.C.G.A. § 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. (O.C.G.A. § 34-9-221(b).)
  • 8. 8 Practical Law © 2021 Thomson Reuters. All rights reserved. Use of Practical Law websites and services is subject to the Terms of Use (static.legalsolutions.thomsonreuters.com/static/agreement/westlaw-additional-terms.pdf) and Privacy Policy (a.next.westlaw.com/Privacy). Workers’ Compensation Laws: Georgia Additionally: • TTD benefits are payable for a maximum of 400 weeks from the date of injury (O.C.G.A. § 34-9-261). • TPD benefits are payable for a maximum of 350 weeks from the date of injury (O.C.G.A. § 34-9-262). Claimants cannot receive TTD and TPD benefits at the same time for the same injury (N. 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 (O.C.G.A. § 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 O.C.G.A. § 34-9-263(c). PPD benefits are subject to the same maximum and minimum limitations on weekly income benefits as TTD benefits laid out in O.C.G.A. § 34-9-261. (O.C.G.A. § 34-9-263(c).) Medical Benefits There is no waiting period for medical benefits for a compensable injury (O.C.G.A. §§ 34-9-200 and 34-9- 220). 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. The maximum length does not apply to claims for long term medical devices that typically require maintenance or revisions over time. • 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, if the benefits: – – are reasonably required; and – – appear likely to effect a cure, give relief, or restore the employee to suitable employment. (O.C.G.A. § 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, 2019, TTD benefits are two-thirds of the employee’s average weekly wage: • Up to a maximum of $675 per week. • At least $50 per week, unless the weekly wage is below $50, in which case the benefit is the average weekly wage. (O.C.G.A. § 34-9-261.) This amount is payable for a maximum of 400 weeks from the date of injury (O.C.G.A. § 34-9-261). For injuries occurring after July 1, 2019, 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 $450 per week. This amount is payable for a maximum of 350 weeks from the date of injury. (O.C.G.A. § 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 O.C.G.A. § 34-9-263(c). PPD benefits are subject to the same maximum and minimum limitations on weekly income benefits as TTD benefits laid out in O.C.G.A. § 34-9-261. (O.C.G.A. § 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. (O.C.G.A. § 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 Cty. Bd. of Ed., 532 S.E.2d 427, 430 (Ga. Ct. App. 2000)). Medical Benefits There is no monetary limit on medical benefits, if the conditions of O.C.G.A. § 34-9-200 are met. The SBWC
  • 9. 9 Practical Law © 2021 Thomson Reuters. All rights reserved. Use of Practical Law websites and services is subject to the Terms of Use (static.legalsolutions.thomsonreuters.com/static/agreement/westlaw-additional-terms.pdf) and Privacy Policy (a.next.westlaw.com/Privacy). Workers’ Compensation Laws: Georgia publishes an annual fee schedule of reasonable charges for medical services provided under the workers’ compensation law (O.C.G.A. § 34-9-205(b)). This fee schedule and its yearly updates can be found on their 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, 246-47 (Ga. Ct. App. 1984)). If the employer becomes insolvent, 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 provisions of the law are subject to a civil penalty between $500 and $5,000 for each violation (O.C.G.A. §§ 34-9-18(c), 34-9-121, and 34-9-126(a)). 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 contests the compensation (O.C.G.A. § 34-9-221(d)); or – – the Georgia State Board of Workers’ Compensation (SBWC) 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. (O.C.G.A. § 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 the SBWC: – – grants a review of the award; or – – 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. (O.C.G.A. § 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 the SBWC requires. • Mileage reimbursements within 15 days. (O.C.G.A. § 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 more than 30 days after their due date but within 60 days, a 10% penalty is added to the charges. • For any charges paid more than 60 days after their due date but within 90 days, 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 91st day after the date the charges were due until full payment is made. (O.C.G.A. § 34-9-203(c)(3).) All penalties and interest must be paid to the provider of the health care goods or services (O.C.G.A.  § 34-9-203(c)(3)). Criminal Penalties Employers subject to Georgia’s workers’ compensation laws that willfully neglect to comply with filing requirements are guilty of a misdemeanor (O.C.G.A.  § 34-9-126(b)).
  • 10. 10 Practical Law © 2021 Thomson Reuters. All rights reserved. Use of Practical Law websites and services is subject to the Terms of Use (static.legalsolutions.thomsonreuters.com/static/agreement/westlaw-additional-terms.pdf) and Privacy Policy (a.next.westlaw.com/Privacy). Workers’ Compensation Laws: Georgia 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 resulting from employees seeking workers’ compensation benefits are not viable causes of action (Evans v. Bibb Co., 342 S.E.2d 484, 485-86 (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. 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 remedies Georgia’s workers’ compensation law grants to an employee exclude all other rights and remedies of the employee, the employee’s personal representative, parents, dependents, or next of kin for: • Injury. • Loss of service. • Death. (O.C.G.A. § 34-9-11(a).) The Georgia workers’ compensation law is mandatory and there is no right to elect remedies (S. Wire & Iron, Inc. v. Fowler, 124 S.E.2d 738, 740 (Ga. 1962)). There are several exceptions to this exclusive remedy doctrine. If an injury does not actually arise out of or occur in the course of the employee’s employment: • The workers’ compensation law provides no remedy. • The employee may bring a private action. (Connell v. Head, 559 S.E.2d 73, 75 (Ga. Ct. App. 2002).) Additional exemptions include: • Intentional torts. The exclusive remedy doctrine 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. (O.C.G.A. § 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 (O.C.G.A. § 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 (O.C.G.A. § 34-9-11). 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 the professional’s employees. (O.C.G.A. § 34-9-11.) • Claims for property damage against the employer. 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 GWCA. (O.C.G.A. § 34-9-11); Superb Carpet Mills, Inc. v. Thomason, 359 S.E.2d 370, 371-72 (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. 1987)). However, this does not allow suits against the employer
  • 11. Workers’ Compensation Laws: Georgia 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 legalsolutions.com/practical-law. For more information or to schedule training, call 1-800-733-2889 or e-mail referenceattorneys@tr.com. through vicarious liability (Crisp Reg’l 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, 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 employment 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 (O.C.G.A. § 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 Georgia’s workers’ compensation law (O.C.G.A. § 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 Res. v. Demory, 227 S.E.2d 788, 789 (Ga. Ct. App. 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 Workers’ Compensation (SBWC) provides useful information and forms on its website. The SBWC’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.