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COVID-19 Complicates Workers’ Compensation

In Georgia, the pandemic exposes legal gray areas

December 18, 2020 Photo

As if 2020 did not already present enough difficulties, a few complicated workers’ compensation claims have made for an even more tumultuous year. Some of the factors complicating these claims include layoffs, concurrent claims for unemployment benefits, subsequent claims from the same claimant, and the interaction of state and federal laws. Below, these variables impacting claims are broken down to help you manage workers’ compensation claims with ease.

Layoffs

In Georgia, a workers’ compensation claimant is entitled to temporary total disability (TTD) benefits, pursuant to O.C.G.A § 34-9-261, if she can show, by a preponderance of competent and credible evidence, that she has experienced a total loss of earning capacity due to a work injury. A claimant is not, however, entitled to TTD benefits simply by virtue of being laid off. Instead, at least in Georgia, if a claimant suffers from a physical disability that resulted from an on-the-job accident and is discharged from her employment for some reason other than her work accident, she must show a “diligent but unsuccessful” job search to qualify for workers’ compensation wage benefits. Thus, there will generally be an initial question of whether the layoff was the result of the claimant’s work injury.

For example, many employers in Georgia were forced, due to the economic realities of the pandemic, to lay off a portion of their workforce. If the only employees who are laid off are those with work restrictions, a savvy claimant’s attorney may attempt to show that the work accident, not the coronavirus, is the actual reason for the loss of earning capacity.

Unemployment

To continue the example presented by layoffs related to COVID-19, many companies applied for unemployment benefits on behalf of their employees who were furloughed or laid off. In situations where the claimant is also receiving workers’ compensation benefits, the employer may be entitled to some credit for the unemployment benefits paid. In Georgia, under O.C.G.A. § 34-9-243, the employer is entitled to a dollar-for-dollar credit for unemployment paid. This is meant to prevent claimants from double dipping and receiving unemployment benefits at the same time they are receiving, or otherwise entitled to, indemnity benefits for a workers’ compensation accident. Employers in Georgia wishing to avail themselves of this credit must give 10 days’ notice before any hearing at which the credit is sought.

Subsequent-Injury Claims

Subsequent-injury claims may convolute an otherwise compensable work-related injury and entitle the claimant to additional workers’ compensation benefits. Consider the following claim involving drug addiction as an example:

Assume a claimant has a compensable back injury, and as a consequence of the pain from his injuries, he consumes alcohol or drugs in such excess that he develops an addiction. Medical expenses or disability attributable to alcohol addiction are not compensable. Treatment for drug addiction, on the other hand, may be compensable if “such addiction or disability resulted from the use of drugs or medicines prescribed for the treatment of the initial injury by an authorized physician” to treat his compensable work injury, as outlined in  O.C.G.A. § 34-9-1(4). This bright line between alcohol addiction and drug addiction is significant, and may be explained, in part, because an authorized physician prescribes opioids for pain management, for instance, but not bourbon.

Consider another example from American Surety Corp. v. Bush 100 Ga. App. 819 (1959),in which a carpenter fell from scaffolding, sustaining a compensable fracture to his skull. The carpenter’s treating physician authorized, among other treatments, an antibiotic that caused the carpenter to develop a fungal condition called “black tongue.” The black tongue caused the carpenter distress, and he missed work because of it. The Court of Appeals of Georgia held the carpenter was entitled to additional workers’ compensation benefits for his black tongue, as it was the natural consequence of his treatment for his original injuries.

As these scenarios are fact-specific, employers can contact an attorney to help mitigate exposure and determine if there is a true subsequent claim.

Federal Laws

Similarly, certain federal laws such as the Family Medical Leave Act (FMLA) can reshape how we think about a compensable injury in Georgia. Generally, FMLA provides unpaid, job-protected leave for specified family and medical reasons with continued group health insurance coverage. FMLA and workers’ compensation may run concurrently, however an employer cannot force an injured worker to use FMLA in lieu of workers’ compensation. On the other hand, because FMLA protects injured workers from termination while they are on medical leave, an employee who is out of work for a work-related injury may, if the circumstances allow, choose to also take FMLA medical leave to avoid termination.

In practical terms, that means a savvy claimant’s attorney may advise the claimant to have her personal doctor provide the requisite documents to request FMLA leave. This can prevent an employer from returning a claimant to work in a situation where the authorized treating physician has released the claimant to light duty or full duty while the claimant’s family doctor maintains that she cannot work. Normally, under workers’ compensation, employers would have recourse if the claimant’s authorized physician released her to work in some capacity. With a light-duty release, employers can begin the WC-240 process of bringing the claimant back to work and can take appropriate action if she refuses. However, a claimant’s job is safeguarded for a specific amount of time under FMLA.

After the requisite period of protected leave expires, however, an attorney can help employers redirect the claimant to the workforce under the WC-240 light-duty return-to-work process, assuming she has been released to light duty by the authorized treating physician.

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About The Authors
Multiple Contributors
Monica Goudy

Monica Goudy is an attorney with Swift, Currie, McGhee & Hiers, LLP. monica.goudy@swiftcurrie.com

Elijah Davis

Elijah Davis is an attorney with Swift, Currie, McGhee & Hiers, LLP.  elijah.davis@swiftcurrie.com

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