Atlanta Workers Compensation Law : Atlanta Workers' Compensation Lawyer & Attorney : Seth Bader Law Firm : Construction Accidents, Repetitive Motion Injuries, Disability : Atlanta, Marietta, Roswell, Georgia

When the employee is no longer receiving weekly benefits under O.C.G.A. 34-9-261 or 34-9-262, and a permanent partial disability (PPD) rating has not previously been requested or issued, the employer/insurer shall have thirty days to request, in writing, from an authorized physician, that the employee be rated in accordance with the "Guides to the Evaluation of Permanent Impairment, Fifth Edition," published by the American Medical Association. The employer/insurer shall furnish a copy of the medical report of rating to the employee, and commence payment not later than 21 days after knowledge of the rating. The employer/insurer are presumed to have knowledge of the rating not later than 10 days after the date of the report establishing the rating.

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This report and/or the HCFA 1500, HCFA 1450, and/or UB92 shall be completed and filed as follows:

(A)  The attending physician or other practitioner makes the report and forwards it along with office notes and other narratives to the employer/insurer as follows:

(i)  Within seven days of initial treatment;

(ii)  Upon the employee's discharge by the attending physician;

(iii)  At least every three months until the employee is discharged;

(iv)  Upon the employee's release to return to work;

(v)  When a permanent partial disability rating is determined.

(vi)  Pursuant to Rule 203(b).

(B)  The employer/insurer shall file the report including office notes and narratives with the Board within 10 days after receipt as follows:

(i)  When the report contains a permanent partial disability rating;

(ii)  Upon request of the Board; and,

(iii)  To comply with other rules and regulations of the Board.

(C)  The employer/insurer shall maintain copies of all medical reports and attachments in their files and shall not file medical reports except in compliance with this rule and Rule 200(c).

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(a)  If an injured employee refuses employment procured for him or her and suitable to his or her capacity, such employee shall not be entitled to any compensation, except benefits pursuant to Code Section 34-9-263, at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified.

(b)  Notwithstanding the provisions of subsection (a) of this Code section, if the authorized treating physician releases an employee to return to work with restrictions and the employer tenders a suitable job to the employee within those restrictions, then:

(1)  If the employee attempts the proffered job and is unable to perform the job for more than 15 working days, then weekly benefits shall be immediately reinstated, and the burden shall be upon the employer to prove that the employee is not entitled to continuing benefits; or

(2)  If the employee refuses to attempt the proffered job, then the employer may unilaterally suspend benefits upon filing with the board the appropriate form with supporting documentation of the release to return to work with restrictions by the authorized treating physician, the tender of a suitable job within those restrictions, and a statement that the employee did not attempt the proffered job.  Under those circumstances, the burden shall shift to the employee to prove continuing entitlement to benefits.

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(a)  Limitation on simultaneous compensation.

If an employee received an injury for which income benefits are payable while still entitled to or receiving income benefits for a previous injury, the employee shall not be entitled to income benefits at the same time for both injuries unless because of the later injury the employee is entitled to income benefits for a permanent partial disability under Code Section 34-9-263; but the employee shall be entitled to income benefits for that injury and from the time of that injury which will cover the longest period and the largest amount of income benefits payable.  Compensation for other than income benefits shall be apportioned upon a determination of whether the need for such is attributable to the first or second injury.

(b)  Limitation on compensation for permanent partial disability.

If an employee received an injury for which income benefits are payable under Code Section 34-9-263 and has a preexisting bodily loss or loss of use as described under Code Section 34-9-263 which was increased by reason of the injury, the employee shall be entitled to income benefits under Code Section 34-9-263 only for the loss or loss of use as increased by the injury.  This limitation, however, shall not prevent the employee from continuing to receive income benefits for the preexisting loss or loss of use to which the employee is otherwise entitled under Code Section 34-9-263.

(c)  Total disability by subsequent injury.

(1)  An employee who has a prior disability as described in Article 9 of this chapter and who sustains a subsequent injury which combines with the prior injury to produce total disability shall be entitled to income benefits as provided in Code Section 34-9-261.  The loss of both hands, feet, arms, legs, or the loss of any two of them or the total loss of vision of both eyes shall be presumed to be total disability, subject to rebuttal.

(2)  An employer who makes payment under this subsection shall be entitled to reimbursement as determined under Article 9 of this chapter.

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(a)  Definition.  As used in this chapter, "permanent partial disability" means disability partial in character but permanent in quality resulting from loss or loss of use of body members or from the partial loss of use of the employee's body.

(b)  Payment of benefits.

(1)  In cases of permanent partial disability, the employer shall pay weekly income benefits to the employee according to the schedule included within this Code section.  These benefits shall be payable without regard to whether the employee has suffered economic loss as a result of the injury, except as herein provided.

(2)  Income benefits due under this Code section shall not become payable so long as the employee is entitled to benefits under Code Section 34-9-261 or 34-9-262.

(3)  If any employee is receiving benefits under this Code section and experiences a change in condition qualifying the employee for income benefits under Code Section 34-9-261 or 34-9-262, any payments under this Code section shall cease until further change of the employee's condition occurs.

(c)  Schedule of income benefits.  Subject to the maximum and minimum limitations on weekly income benefits specified in Code Section 34-9-261, the employer shall 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 bodily loss or loss of use times the maximum weeks as follows:

Bodily Loss                                             Maximum Weeks

(1)  Arm...............................................................225

(2)  Leg...............................................................225

(3)  Hand..............................................................160

(4)  Foot..............................................................135

(5)  Thumb............................................................ 60

(6)  Index finger..................................................... 40

(7)  Middle finger.................................................... 35

(8)  Ring finger...................................................... 30

(9)  Little finger.................................................... 25

(10)  Great toe....................................................... 30

(11)  Any toe other than the great toe................................ 20

(12)  Loss of hearing, traumatic

One ear........................................................ 75

Both ears.......................................................150

(13)  Loss of vision of one eye........................................150

(14)  Disability to the body as a whole................................300

(d)  Impairment ratings.  In all cases arising under this chapter, any percentage of disability or bodily loss ratings shall be based upon Guides to the Evaluation of Permanent Impairment, fifth edition, published by the American Medical Association.

(e)  Loss of more than one major member.  Loss of both arms, hands, legs, or feet, or any two or more of these members, or the permanent total loss of vision in both eyes shall create a rebuttable presumption of permanent total disability compensable as provided in Code Section 34-9-261.

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(a)  As used in this Code section, the term:

(1)  "Harmful noise" means sound in employment capable of producing occupational loss of hearing as defined in paragraph (2) of this subsection.  Sound of an intensity of less than 90 decibels, A scale, shall be deemed incapable of producing occupational loss of hearing as defined in this Code section.

(2)  "Occupational loss of hearing" means a permanent sensorineural loss of hearing in both ears caused by prolonged exposure to harmful noise in employment.

(b)  Compensation based on 66 2/3 percent of average weekly wages, subject to limitations of Code Section 34-9-261, shall be payable for loss of hearing caused by harmful noise, subject to the following rules which shall be applicable in determining eligibility, amount, and period during which compensation shall be payable:

(1)  In the evaluation of occupational hearing loss, only the hearing levels at the frequencies of 500, 1,000, and 2,000 cycles per second shall be considered.  Hearing losses for frequencies below 500 and above 2,000 cycles per second are not to be considered as constituting compensable hearing disability.  No consideration shall be given to the question of whether or not the ability of an employee to understand speech is improved by the use of a hearing aid.  The board may order the employer to provide the employee with an original hearing aid if it will materially improve the employee's ability to hear;

(2)  The percentage of hearing loss shall be calculated as the average, in decibels, of the thresholds of hearing for the frequencies of 500, 1,000, and 2,000 cycles per second.  Pure tone air conduction audiometric instruments, properly calibrated according to accepted national standards such as American Standards Association, Inc. (ASA), International Standards Organization (ISO), or American National Standards Institute, Inc. (ANSI), shall be used for measuring hearing loss. If more than one audiogram is taken, the audiogram having the lowest threshold will be used to calculate occupational hearing loss.  If the losses of hearing average 15 decibels (26 db if ANSI or ISO) or less in the three frequencies, such losses of hearing shall not constitute any compensable hearing disability.  If the losses of hearing average 82 decibels (93 db if ANSI or ISO) or more in the three frequencies, then the same shall constitute and be total or 100 percent compensable hearing loss.  In measuring hearing impairment, the lowest measured losses in each of the three frequencies shall be added together and divided by three to determine the average decibel loss. For each decibel of loss exceeding 15 decibels (26 db if ANSI or ISO) an allowance of 1 1/2 percent shall be made up to the maximum of 100 percent which is reached at 82 decibels (93 db if ANSI or ISO).  In determining the binaural percentage of loss, the percentage of impairment in the better ear shall be multiplied by five.  The resulting figure shall be added to the percentage of impairment in the poorer ear, and the sum of the two divided by six.  The final percentage shall represent the binaural hearing impairment;

(3)  There shall be payable for total occupational loss of hearing 150 weeks of compensation and for partial occupational loss of hearing such proportion of these periods of payment as such partial loss bears to the total loss;

(4)  Except in instances of preexisting loss of hearing due to disease, trauma, or congenital deafness in one ear, no compensation shall be payable under this Code section unless prolonged exposure to harmful noise in employment has caused loss of hearing in both ears as hereinafter provided;

(5)  No compensation benefits shall be payable for temporary total or temporary partial disability under this Code section; and there shall be no award for tinnitus or a psychogenic hearing loss;

(6)  The regular use of employer provided protective devices capable of preventing loss of hearing from the particular harmful noise where the employee works shall constitute removal from exposure to such particular harmful noise.  No compensation benefits shall be payable for occupational loss of hearing caused by harmful noise if the employee fails to regularly utilize the employer provided protection device or devices which are capable of preventing loss of hearing from the particular harmful noise where the employee works;

(7)  The employer liable for the compensation in this Code section shall be the employer in whose employment the employee was last exposed to harmful noise in Georgia during a period of 90 working days or parts thereof; and an exposure during a period of less than 90 working days or parts thereof shall be held not to be an injurious exposure; provided, however, that, in the event an insurance carrier has been on the risk for a period of time during which an employee has been injuriously exposed to harmful noise and if after such insurance carrier goes off the risk said employee has been further exposed to harmful noise, although not exposed for 90 working days or parts thereof, so as to constitute an injurious exposure, such carrier shall, nevertheless, be liable;

(8)  An employer shall become liable for the entire occupational hearing loss to which his employment has contributed; but, if previous deafness is established by a hearing test or other competent evidence, whether or not the employee was exposed to harmful noise within six months preceding such test, the employer shall not be liable for previous loss so established, nor shall he be liable for any loss for which compensation has previously been paid or awarded.  The employer shall be liable only for the difference between the percentage of occupational hearing loss determined as of the date of disability and the percentage of loss established by preemployment and audiometric examinations excluding, in any event, hearing losses arising from nonoccupational causes.

(c)  No claim for compensation for occupational hearing loss shall be filed until six months have elapsed since exposure to harmful noise with the last employer.  The last day of such exposure shall be the date of disability.

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(a)  When an employee is entitled to compensation under this chapter for an injury received and death ensues from any cause not resulting from the injury for which he or she was entitled to compensation, payments of the unpaid balance for such injury shall cease and all liability therefor shall terminate.

(b)  If death results instantly from an accident arising out of and in the course of employment or if during the period of disability caused by an accident death results proximately therefrom, the compensation under this chapter shall be as follows:

(1)  The employer shall, in addition to any other compensation, pay the reasonable expenses of the employee's burial not to exceed $7,500.00.  If the employee leaves no dependents, this shall be the only compensation;

(2)  The employer shall pay the dependents of the deceased employee, which dependents are wholly dependent on his or her earnings for support at the time of the injury, a weekly compensation equal to the compensation which is provided for in Code Section 34-9-261 for total incapacity;

(3)  If the employee leaves dependents only partially dependent on his or her earnings for their support at the time of the injury, the weekly compensation for these dependents shall be in the same proportion to the compensation for persons wholly dependent as the average amount contributed weekly by the deceased to the partial dependents bears to the deceased employee's average weekly wages at the time of the injury; and

(4)  When weekly payments have been made to an injured employee before his or her death, compensation to dependents shall begin on the date of the last of such payments; but the number of weekly payments made to the injured employee under Code Section 34-9-261, 34-9-262, or 34-9-263 shall be subtracted from the maximum 400 week period of dependency of a spouse provided by Code Section 34-9-13; and in no case shall payments be made to dependents except during dependency.

(c)  The compensation provided for in this Code section shall be payable only to dependents and only during dependency.

(d)  The total compensation payable under this Code section to a surviving spouse as a sole dependent at the time of death and where there is no other dependent for one year or less after the death of the employee shall in no case exceed $150,000.00.

(e)  If it shall be determined that the death of an employee was the direct result of an injury proximately caused by the intentional act of the employer with specific intent to cause such injury, then there shall be added to the weekly income benefits paid to the dependents, if any, of the deceased employee a penalty of 20 percent; provided, however, such penalty in no case shall exceed $20,000.00.  For the purpose of this subsection, an employer shall be deemed to have intended an injury only if the employer had actual knowledge that the intended act was certain to cause such injury and knowingly disregarded this certainty of injury. Nothing in this subsection shall limit the effect of Code Section 34-9-11.

(f)  Each insurer or self-insurer which, in a compensable death case, finds no dependent or dependents qualifying to receive dependency benefits shall pay to the State Board of Workers' Compensation one-half of the benefits which would have been payable to such dependent or dependents or the sum of $10,000.00, whichever is less.  All such funds paid to the board shall be deposited in the general fund of the state treasury.  If, after such payment has been made, it is determined that a dependent or dependents qualified to receive benefits exist, then the insurer or self-insurer shall be entitled to reimbursement by refund for moneys collected in error.

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