Senate Passes Exclusive Remedy-Tightening Measure

 The Georgia Senate has passed a bill meant to tighten the exclusive-remedy portion of the state’s workers’ compensation law, sending the measure on a track to Gov. Nathan Deal’s desk.

The Senate passed House Bill 412 by a 46-0 vote. Rep. Mark Hamilton’s measure revises Section 34-9-11(a) to Georgia’s code, stipulating that an employer “may be liable to the employee for rights and remedies beyond those provided in this chapter by expressly agreeing in writing to specific additional rights and remedies,” but that “the use of contractual provisions generally relating to workplace safety, generally relating to compliance with laws or regulations, or generally relating to liability insurance requirements shall not be construed to create rights and remedies beyond those” the statute provides.

The bill was drafted in part to avoid breach-of-contract suits stemming from injured-worker cases such as a group of suits by a deceased worker’s family that the Georgia courts eventually upheld in Pitts v. City of Atlanta. Stakeholders viewed the Pitts decision as a loosening of exclusive remedy.

HB 412 also would mandate slight increases in Georgia’s weekly temporary total disability and temporary partial disability maximums; raise the maximum death benefit for a sole surviving spouse with no other dependent for one year or less after the injured worker’s death; and shift the property of the Subsequent Injury Trust Fund from the State Board of Workers’ Compensation to the state insurance department. Under the bill, the Subsequent Injury Trust Fund would end in 2020, rather than 2023. The fund stopped accepting new injury claims in 2006.

Information on HB 412 can be viewed here.

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Voting to Create Study for Misclassification of Workers

A Georgia Senate committee has voted unanimously to create a panel to study worker misclassification, according to the Savannah Morning News.
 
The Senate Insurance and Labor Committee approved Senate Resolution 11 on Wednesday after a hearing that included testimony from Savannah truckers who said that they were classified as independent contractors, rather than employers, by freight-hauling companies that serve the port of Savannah. Being classified as such leaves the workers without workers’ compensation or other benefits.
 
“If they are going to treat us as employees, they need to pay us as employees,” a trucker named Michael Alldyne told the committee.
 
A stagehand named Brian Hill said that a member of his industry recently fell while installing rigging for the Super Bowl and is left without insurance to help pay his bills.
 
According to the Morning News, a trucker named Carol Cauley was holding back sobs as she told the committee, “Our generation is going to suffer if we don’t get this fixed very soon."
 
SR 11 creates the Senate Study Committee on Employee Misclassification, a seven-member body with the chairperson of the Insurance and Labor Committee serving as chair.
 
“I want to say to the folks who testified: You might wonder about whether driving all this way to the Capitol makes a difference,” Sen. Josh McKoon, R-Columbus, said at the hearing. “It’s made a difference for me to hear your stories. I’m shocked and troubled by what you have communicated to us today.”
 
In our workers’ compensation practice, we often see employers who classify (or more accurately misclassify) workers as independent contractors in part to avoid paying employment taxes and in part to avoid paying for workers’ compensation insurance. In Georgia, however, the classification of a worker as an independent contractor is not the sole basis for determining whether the worker was in a fact an “independent contractor” for purposes of workers’ compensation. Instead, the State Board of Workers’ Compensation looks at various factors to determine whether the worker was an “employee” or an “independent contractor.” These factors include but are not limited to the contract of employment, the duration of the contract, the manner in which the worker was paid, whether the employer could terminate the worker’s employment if they refused to accept a job, and most importantly, who controlled the time, manner, and method of the worker’s employment. 
 
If you or a loved one were injured on the job and there is a question about whether you were an “employee” or an “independent contractor,” we strongly recommend that you call us for a free consultation at 404-917-9174
 
 
 

Worker Trapped in Cobb County Concrete Plant


 A worker trapped at a concrete plant in Marietta has died, according to the Cobb County Fire Department. Fire crews say two workers were doing repair work inside a silo Monday afternoon at Thomas Concrete on Canton Road when one of the men lost his footing and slipped. He was immediately buried by hundreds of pounds of gravel.

 
Around 5 p.m., fire officials told Channel 2’s Tom Regan they are now treating the scene as a recovery operation. The later recovered his body.Authorities said Occupational Safety and Health Administration officials were on the scene conducting an investigation.
 
These types of tragic events happen often. According to the 2013 Bureau of Labor Statistics , 20% of work fatalities are caused by slip and falls. Because he was working at the time of this accident, his family is almost certainly entitled to substantial workers’ compensation benefits under Georgia law. Under Georgia workers compensation law, the amount your spouse is entitled to receive depends on the number of dependent children, if any are under the legal age or If your children are full-time students. You may also be entitled to receive burial expenses up to $7,500. 
 
This is why speaking with an experienced workers compensation attorney can help you ensure that you and your family are taken care of. Your future shouldn't be in the hands of the big insurance companies who aren't looking out for your best interest. We ensure we are able to maximize the benefits you and family deserve.
 
Contact Bader Law Firm for a free, no obligation, consultation to discuss your potential workers compensation case at 404-917-9174

 

Atlas Steel Coatings Fined by OSHA

The federal Occupational Safety and Health Administration has cited Atlas Steel Coatings for violations at the company's Albany, Georgia facility last July. OSHA fined the company for failing to train workers on lead hazards, not providing personal protective equipment for workers exposed to lead, not developing a site specific lead compliance plan and not providing showers for workers exposed to lead beyond safe levels.


Atlas was also fined for not providing workers with forklift training and failure to notify workers of their blood lead test results in writing within five days. "This is to prevent workers from transferring lead contamination to their homes or families", said Robert Vazzi, director of OSHA's area office in Savannah. 

Proposed penalties for Atlas Steel total $58,800
 
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Atlanta Police Officer Hit by Truck at Atlanta Medical Center Suffers Work-Related Injuries

On November 11, 2014, a police officer was hit by the driver of a truck while responding to a dispute that arose at Atlanta Medical Center. The incident occurred in the hospital parking deck when the suspect involved in the dispute entered a red truck, and then backed up and drove at the officer. According to Atlanta Police Department spokesperson John Chafee, the injured officer suffered an injury to his hand.

Because the officer’s injuries arose out of and in the course and scope of his employment with the police department, his injuries should be covered by Georgia’s workers’ compensation laws. Here, the officer was responding to a dispute and was working to eliminate the threat being posed at the hospital when he was injured; consequently, a workers’  compensation judge would likely conclude that he was in the course and scope of his employment at the time.

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WBT Peanut Company Employee Killed in Front-End Loader Accident

 On October 2, 2014, 61-year-old Isabel ‘Rubin’ Gomez was killed in a front-end loader accident at the WBT Peanut Company in Rebecca, Georgia.

At the time of the incident, Mr. Gomez and his brother were working on the hydraulic system of a front-end loader at the WBT Peanut Company when the lift arms dropped on both men. Mr. Gomez reportedly died from injuries at the scene.

According to media reports, OSHA is now investigating the accident. Among the questions raised by this incident is whether a catastrophic equipment malfunction may have contributed to this tragedy.

If this tragic event was caused by an equipment malfunction, the front-end loader’s manufacturer may be held civilly liable for Mr. Gomez’s wrongful death. Also, because Mr. Gomez was working at the time of this accident, his family is almost certainly entitled to substantial workers’ compensation benefits under Georgia law. 

Given the relatively high number of front-end loader fatalities reported to OSHA each year, equipment manufacturers must implement proper safety precautions in an effort to prevent such disasters. Perhaps though, through these claims, many other lives may be spared.

 

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The Workers' Compensation "Option": Why Opting Out Might Become Very "In"

 

The Association of Responsible Alternatives to Workers’ Compensation, or ARAWC, is a relatively new organization focused on introducing sweeping changes to traditional state workers’ compensation systems. Specifically, the group (comprised of national employers, insurers, and service providers) seeks to reduce the costs associated with traditional workers’ compensation programs by providing employers with an administrative “Option” for resolving workers’ compensation claims. Two states have already adopted versions of the workers’ compensation opt-outs, and ARAWC is now setting its sights on at least two others. While it’s unclear whether this trend will continue, there’s no denying ARAWC’s commitment to reforming state-based workers’ compensation systems.

 

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Supreme Court of Georgia Denies Benefit Award to Mother for Son's Work Death

The Supreme Court of Georgia upheld a Randolph County court decision that a woman whose adult son was killed while working for the City of Cuthbert is not entitled to her son’s death benefit, despite being his only legal heir. Louise Shorter Barzey argued the Georgia statute preventing her from the compensation is unconstitutional. 

On July 16, 2010, Deron Shorter was operating a mower for the City of Cuthbert when he crashed into a ditch. The mower turned over onto Shorter and he was pronounced dead at the scene.

Prior to working with the city, Shorter worked as a firefighter for 13 years. He was single and did not have children. But he did have a mother, Louise Shorter Barzey, who, under the law, was considered his sole heir.  She was not dependent on her son.  But as his sole legal heir, she filed a lawsuit against the City, claiming she was entitled to his death benefit under the Georgia Workers’ Compensation Act.

The City disagreed, based on a provision of the Act, Official Code of Georgia § 34-9-265, which states that the death benefit for a worker who dies on the job may only be paid to legal dependents.  For the employee who has no dependents, expenses for the employee’s burial “shall be the only compensation,” the statute says.  Barzey argued that distinguishing between dependents and heirs violated her federal constitutional rights to due process and equal protection by precluding her, as a non-dependent parent, from bringing a claim to recover for his death.

In October 2013, the trial court ruled in favor of the City, and Barzey then appealed to the state Supreme Court.

On September 22, 2014 the Supreme Court of Georgia delivered its unanimous opinion. Justice David Nahmias succinctly stated: “We affirm the trial court’s ruling that the Act’s limitation on the recovery of non-dependent heirs does not violate Barzey’s constitutional rights to due process and equal protection.”

A statute “does not violate due process in substance as long as it ‘bear[s] a rational relationship to a legitimate objective of the government,’” the opinion says. Similarly, to survive an equal protection challenge, “the classifications drawn in the statute [must] bear a rational relationship to a legitimate end of government not prohibited by the Constitution.”

Though the Georgia Supreme Court has never ruled on the constitutionality of disallowing non-dependent heirs from recovery under the Workers’ Compensation Act, many courts in other jurisdictions have. “Those courts have consistently held that the legislature may rationally decide to direct workers’ compensation resources to those who are dependent on deceased employees and limit the recovery of non-dependents, and thus the distinction between dependents and non-dependents does not violate federal or state constitutional rights to due process and equal protection,” the opinion provides.

 

Injured at work? If so, it's time to take a break from social media

In this day and age, most Americans use social media in some form or fashion.  Usually, maintaining and updating a social media account has no impact on user’s life.  However, if you’ve suffered a work injury it’s probably in your best interest to stop using, if not totally shut down, your social media accounts (i.e. Facebook, Twitter, Instagram, Snapchat, YouTube, etc.).  While this course of action may seem extreme, you can be sure that your employer and their workers’ compensation insurance carrier will likely start searching for and monitoring your social media accounts to see if something that has been posted (by you or someone else) will help them in their defense of your workers’ compensation claim.

In fact, there have been cases where information found on social media platforms have led to the nullification of an employee’s workers’ compensation claim.  Some examples include:

A Los Angeles-area warehouse worker who claimed his back injury prevented him from working posted that he bowled a perfect game on his Facebook page.

A beauty queen was receiving workers’ compensation income benefits because of a foot injury she suffered at work.  Shawna Palmer told doctors her fractured toe prevented her from working or, even wearing shoes as a grocery store clerk.  But a YouTube video shows her competing in a beauty pageant in high heels during the time she was receiving the income benefits.  As a result, the benefits were suspended, and she is now being prosecuted for workers’ compensation fraud.  If she’s found guilty, she faces up to one year in jail and may have to pay almost $25,000 in fines.

 

"Notice" Under the Georgia's Workers' Compensation Act

O.C.G.A. § 34-9-80 requires that every injured employee or his representative shall, immediately on the occurrence of any accident or as soon thereafter as practicable, give or cause to be given to the employer, its agent, representative, foreman, or the immediate supervisor of the injured employee a notice of the accident.  No compensation will be payable unless such notice, either oral or written, is given within thirty (30) days after the occurrence of an accident, or within thirty (30) days after death resulting from an accident, unless it can be shown that the employee had been prevented from doing so by reason of physical or mental incapacity, or by fraud or deceit, or that the employer, its agent, representative, foreman or immediate supervisor of the injured employee had knowledge of the accident, or unless a reasonable excuse is made to the satisfaction of the State Board of Workers' Compensation for not giving such notice and it is reasonably proven to the satisfaction of the Board that the employer had not been prejudiced thereby.

The Georgia Court of Appeals recently tackled whether an employee should be denied benefits under Georgia's Workers' Compensation Act for failing to meet the notice requirement under O.C.G.A. § 34-9-80 in McAdoo v. MARTA, 755 S.E. 2d 278, decided March 11, 2014.  Mr. McAdoo was employed by MARTA as a bus driver.  In May of 2010, Mr. McAdoo began to experience low back pain that caused symptoms in his right lower extremity.  His supervisor urged him to seek medical attention for his back pain because McAdoo was operating the bus differently in order to compensate for his symptoms.  The employee sought treatment with his family physician, who referred him to a neurologist.  Both physicians filled out disability forms indicating the employee's symptoms were not work-related.  The employee went out of work on October 17, 2010.  In December of 2010, the employee filled out a short-term disability form on which he indicated his disability was work related.

The Georgia Court of Appeals held that the short-term disability form completed by the employee (McAdoo) was adequate notice, as the sole requirement is that the information provided by the employee be sufficient to put the employer on notice of injury so that the employer may conduct an investigation.