Costly Mistakes Employers Make With Workers’ Compensation

We reviewed the common mistakes that employers make, which can increase the length of time and cost of claims. In particular, we reviewed the employer’s posted panel of physicians, which included independent contractors; the employer's firing of employees who make claims; the employer’s first report of injury; and the failure to purchase a workers' compensation policy.

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Thomas L. Walker (00:00:00):
Welcome to the Wimbledon Lawson monthly webinar. I'm Thomas Walker, and I'm gonna be presenting today, and we are gonna be talking about the cost and mistakes that employers make with workers' compensation. I have practiced law for 33 years and have practiced a majority, or not a majority, but a very large portion of my practice has been devoted to workers' compensation and, and defense in particular. And for several years, I've practiced exclusively in workers' compensation defense and one of the largest defense firms in Georgia. And in all the years I've done workers' compensation, I've noticed a recurring theme of mistakes that employers make. And these are the mistakes that drive me the craziest, because these are ones that make claims costlier longer and are very easily fixed. And really, this is more Gil geared towards the employer, not to adjusters. You're an adjuster and you're jumped in, then you know, please stay and you can maybe learn things or maybe, you know, learn how to talk to your employers.

Thomas L. Walker (00:01:05):
But this is really geared towards things that employers can do to help themselves in workers' compensation. So I just wanna give really a brief history about workers' compensation, so you would know more pur about the purpose and why we have workers' comp. Our modern system of workers' compensation actually began in Germany in 1884 with the passage of the workers' accident insurance of 1884. Act, I guess this all it said here. There were a number of economists in Germany who said, you know, when, when an employer is selling a pro, making a product or providing a service, we know that they can pass along the cost of the materials onto the consumer, and they can pass along the cost of labor to the consumer. But these same economists said, with every product or or service you offer, there would be a certain number of employee injuries.

Thomas L. Walker (00:01:59):
And I said, we'd like to be able to find a way where we can, you know, pass it along to the consumer, and it doesn't have to be born by the employer. And it's certainly not by the employee. And so the idea was, well, if they had a workers' compensation insurance, then that could be built into the cost of the product or service and passed along to the consumer. And the, the German system would pay medical benefits and disability and also barred injured workers from filing a lawsuit. So it's very much like our system today. England adopted a Workers' compensation act in 1897, a number of European countries dead. And that idea eventually made its way to the us And in 1908 federal government passed a railroad Workers Workers' Compensation Act, and the state started adopting their own workers' Compensation Act in 1911 with Wisconsin being the very first to adopt a workers' compensation statute.

Thomas L. Walker (00:02:53):
And they all same would follow the same model of paying medical, paying indemnity, and barring a work lawsuits when they're receiving workers' compensation. The very last state to adopt workers' compensation was Mississippi in 1948. Georgia adopted his workers' compensation and the Workers' Compensation Act in 1920, which sounds pretty good, but actually we're one of the last states to adopt a workers' compensation statute. So we certainly did better than Mississippi in that regard. But in, in nine, nine years isn't really too bad after the first one. So but that's where, where, where we are and why we have workers' compensation. So what are the costly and common mistakes that I see make employers make with workers' compensation? Well, the first one and the biggest one, the one that drives me, the craziest is employers not having a valid post-it panel physicians or not even posting a panel of physicians.

Thomas L. Walker (00:03:56):
So what is the employer's post panel physicians? Well, as I mentioned, in workers' compensation, employers have to pay for employees medical treatment, and they have to pay for indemnity. And the way that it is the, we provide for medical treatment in Georgia and, and really in most states, is by having the employers post a panel of physicians and what the panel physicians is, it's the doctors that an employee who's injured can go and see. And this is a really good thing because both the employer gets a saying in the treatment, as does the employee. The employee gets to pick one doctor from that panel, and then they can go and pick any other doctor from that panel if they don't like their first choice, at least in Georgia. And you know, so they, they get a choice, the two, and the employer gets to pick who's on the panel.

Thomas L. Walker (00:04:46):
So what other requirements of the panel? Well, you have to have six physicians or professional association associations or corporations. If you have they have to be reasonably accessible to the employee. And that's not only in geography, but they have to actually be able, be willing to take the employees. The board can grant exceptions to the six and can lower to four if it's in an area where there isn't a six that are reasonably accessible. But, you know, unless you're talking about a very rural area, the board's probably not gonna grant that. So just remember six reasonably accessible doctors. You have to have at least one physician whose practice specialty is orthopedic surgery. You can't have more than two industrial clinics. Now you can have more than six doctors on the panel, but the law is very clear that you can't have more than two industrial clinics. So what if you decide you wanna have eight doctors on your panel and you have three industrial clinics? Probably gonna be an invalid panel because the gloss

Speaker 2 (00:05:56):
Says no more than two. It doesn't make sense, but that's the way it's written. And because workers' compensation is an abrogation of common laws, it's not what the common law would would give. It, they're gonna apply strictly based on the statute. So no more than two industrial clinics on your panel. Board rule 2 0 1 also adds a requirement that's not in the law, and that's that the panel shall include one minority physician, the min minority physician, so selected must practice within the state of Georgia or be reasonably accessible to the employee's residence. So if you're in South Georgia and you have a minority who's perhaps, you know, over in Florida, in Jacksonville, most likely or in Tallahassee, depending on where in the state that would be accessible defines minority shall be defined as a group which has been subjected to prejudice based on race, color, sex, handicap, or national origin, including that, but not limited to black Americans, Hispanic Americans, native Americans, or Asian Americans.

Speaker 2 (00:07:03):
The board rule goes on the state, that's board rule 2 0 1, that failure to include one minority physician on the panel does not necessarily render the panel invalid. The board reserves the right to allow exceptions when warranted. It, the doesn't specifically state this in the rule, but I think in light of the Bostic decision by the US Supreme Court, that extended Title VII protection to sexual orientation and gender identity, I think that employer could safely say that if there's a doctor in that group that is, falls into one of those categories, that would also count the board. Rule 2 0 1 was really inactive in the 1990s. I'm not run across that in decades where it was something to worry about. And I think now it'd be really hard for an employer not to have a practice group or, or have a, a minority on their person to constantly minority for board rule on their panel.

Speaker 2 (00:08:01):
I think you have to actively go out of your way to try and do that. But that is something I didn't want to let you know about. The employee may accept the services of any physician selected by the employer, but may select a p physician on from the panel on their own. The post panel physician shall be posted in any prominent place on the employer's premises. And the final requirement is that the employer should otherwise take all of reasonable measures to ensure that the employees understand the function of the panel that they can have the right to select from the panel, and they're given appropriate assistance in contacting the panel a doctor. So I mentioned something about that the employee gets to choose one physician from the panel and then is restricted to another choice in the panel.

Speaker 2 (00:08:55):
So what if your panel's invalid? What happens there? Well, the employer loses control of the medical, and this is extremely significant. If the employer loses control of the medical, what that means is that the employee can go to any doctor he wants, he's not restricted to that panel. And if he doesn't like the doctor he went to, he can pick another doctor off of the panel. So why is it a problem? Well, the first thing I've seen is that there are some claimant's attorneys that have very close relationships with certain doctors. There's one in particular case I, I've just wrapped up where reportedly this attorney ha could call the cell phone of a doctor, his private cell phone, and he would pick up and the tell him what he wanted the doctor to do. And I thought, not that the doctor would do everything he wanted to do, but the doctor, you know, the attorney said, well, you know, I think this guy should be taking plea outta work rather than light duty.

Speaker 2 (00:09:57):
Doctor was gonna do that. The doctor was very accommodating to that physician. So the first problem is that you might end up with a doctor that has a two close relationship with a claimant's attorney. The second problem you can run into when you lose control of the medical is that there are some doctors who are very quick to cut on patients. Surgery should be something that is a last resort. It shouldn't be a first option. But there was a doctor in the Atlanta area, an orthopedic surgeon who, whenever anybody came to him with a back injury, he immediately scheduled emergency discectomy. And once he did that, you know, the employer could send the employee for an, an independent medical evaluation. But at that point, there really wasn't a whole lot that an IME doctor could do because the surgery was already done. And if you tried to controvert, we really couldn't controvert or object to the surgery after the fact.

Speaker 2 (00:10:56):
The employer was pretty much stuck with paying for it. So you definitely wanna make sure that you don't have a doctor who's quick to cut. And, and reason why surgery should be a last resort and not a first option is because with surgery there are always risks. I handled a case a number of years ago where a person got an infection following a discectomy, and what should have been a fairly simple routine recovery. He became a, a paraplegic, he lost the use of his legs and developed this a condition called CLOs, where he had an uncontrollable shaking of his left leg, 24 7. The other thing that you get with surgery is you have a longer recovery period. And not all surgery does affect a, a good cure and relief. Getting back to another issue that you can have, if, if you lose control of the panel, you might get a doctor who's very slow to return, a person to work.

Speaker 2 (00:11:54):
In a recent case I had, we had in a person who was fairly severely injured, but there were fractures of the femur, and he had a full recco, a good full recovery, good healing of the, the bones, which doesn't always happen. And his doctor, who was char of his care, wouldn't release him to anything beyond sedentary work. And this particular employee was not well educated. He had a very limited educational background, limited job experience. He was very young. So he was somebody who would not be able to do office work. He just didn't have the, the work experience, the tools, the transferable job skills to do that. And, you know, we were wondering, well, why can't we get some sort of a, a a return to work? So I ended up scheduling an independent medical evaluation and a functional capacity evaluation. And we went for an eight hour functional capacity evaluation.

Speaker 2 (00:12:50):
The person who was evaluating him took pictures of the devices that the tests that they wanted to have done took Christian doing the test. They had validity testing. And after a, a very thorough, we got a very thorough 12 page report that came to conclusion that this individual could do medium duty work, and we had work that was me. Well, with a medium duty where he could do minor lifting, minor pulling, minor pushing, standing, walking around, we had, you know, job that would fall easily with those restrictions and we could offer him a light duty job to the credit off, sent that SC to his doctor and said, no, I'm still sedentary. And because he was an authorized treating physician, we were stuck with that opinion, and we'd have to get another doctor and, and go to a hearing. And it would, we weren't gonna win that case if we had to go into that.

Speaker 2 (00:13:43):
The other problem with letting, losing control of the medical is that your employee might go to somebody at the wrong specialty. They might really need to go to an orthopedist, and instead they go to a, a family doctor or they might have an eye injury or an ear injury, and they maybe need to go to, to an ophthalmologist or an ENT and, and they can't get to where they need to to go, or they don't pick the right one. The other issue, and this may be maybe a little bit divisive here, but one of the other problem is that your employee could go to a chiropractor. I know some people really like chiropractors, but in workers' compensation, chiropractors a red flag for most adjusters. If they see a person going a red to a chiropractor, they don't think it's necessarily a valid claim.

Speaker 2 (00:14:30):
And and chiropractors do tend to have very long treatment and limited treatment. They can't do surgery, they can't prescribe medications. They can really in Georgia, they can't really even schedule an MRI. That's not, a lot of people don't really know that. But I had a case that I litigated where a chiropractor had sent somebody for an MRI and we didn't wanna pay the bill. Had gotten into litigation, we won some issues, lost some issues, but one of the issues that we lost was that we had to pay for a chiropractor bill. I appealed to the appellate division, which affirmed just rubber stamped, it appealed to the Superior Court in Gwinnett County. And I pointed out to judge that chiropractors are only permitted in Georgia to work on the spine, and they aren't authorized to send people for MRIs. And the judge agreed with me that isn't precedent, that didn't get to the court of appeals, but there's a superior court judge who at least believed me and agreed with me, and that's why I've read the law.

Speaker 2 (00:15:33):
So I think he's probably right. And as I mentioned, chiropractors are only authorized to work on the spine. I had another case where an individual who's a Spanish speaker, went to a Spanish speaking chiropractor who was very influential in the Spanish speaking community advertised heavily. And this person had a broken arm. He had some other end use too, but had broken arm. And he, they weren't doing anything to treat the arm. It had been set at the emergency room, but the chiropractor could not treat it and ended up having to do a change of physician. And we were able to get him to an orthopedist and he got the care he needed. But that's an example of wrong specialty and losing control. And the final concern with losing control is you might have an individual who selects and goes to a pain doctor, pain doctors some have somewhat of a bad reputation already because they tend to have very expensive medical bills.

Speaker 2 (00:16:32):
They tend to keep people on their treatment, you know, really forever or for at least a very long time. Some pain doctors have not been scrupulous and have been very have been involved in the, the opiate crisis we've had in this country, and they've been willing to write prescriptions to people who rally shouldn't have prescriptions. If you have a, an employee who gets hooked on drugs, gets, you know, addicted to opiates you've now bought the, the into the rehab because if it's a work injury and they get addicted to their pain meds, treating the work injury, you now gotta take care of that too. And that's just gonna extend your medical and will also extend disability. And quite honestly, you know, and this is should be concerned too, it's bad for your employee. You don't wanna get your employees, you don't wanna make their wi lives worse.

Speaker 2 (00:17:24):
You employers want to make employees' lives better you know, through paying them for doing, you know, honest work. And when they get hurt, you wanna see them get better and build able a return back to a useful life. So what are the common problems I've seen with the panel that can validate them and you can lose control? Well, the first thing I I said is that you have to have, well, first problem is there are employers who just don't post a panel. If you don't post a panel, you're, you're outta luck. You just, you, you can post it after the fact, but you're don't get the benefit post after fact. Once you lose control, you've lost control of the medical. So make sure that you post a panel. The second area where people can run into trouble is they may not put six doctors on there.

Speaker 2 (00:18:12):
They may put five, and I put four without getting authorization by the state board. So make sure you have the, the six doctors. Another issue, one that I always hear in depositions is the employee will come up and say, well, you know that they never told me what about the panel. They never explained the panel to me. I didn't know I could pick a doctor. I was told this is the doctor I've gotta get that they, they didn't gimme an option here. So what I recommend you do is explain to employees upon hiring that they get to choose from the panel and they can make one change on the panel and explain that to them again when they, if they come to you with a complaint of being injured. Also tell the employee the location of the panel at hiring. And again, when they report the injury, and in fact when they have an injury, I've just provided 'em with another copy of the panel there for their benefits.

Speaker 2 (00:19:15):
After you've done that, document your file, document your file, document your file. When, when you are onboarding your employees, when you're hiring them, I would have them sign an acknowledgement that you've explained that they get to choose from the panel and they can make one change on the panel. I would also document at the time of hiring and have them sign an acknowledgement that you have showed them the location of the panel. And in that acknowledgement actually state where you have that panel. And when they report an injury, you know, have them assign acknowledgement again that you've explained they can pick a doctor from the panel and that they have a choice the option to pick another doctor. Now some employees are not gonna be as educators savvy or know about doctors and might be a little bit intimidated trying to pick a panel.

Speaker 2 (00:20:03):
And they might say, well, you know, we, we, we want you to select the doctor for it. Great. That's, you know, perfectly acceptable under the code. But I would also have them sign something where it says, I've asked you to pick a doctor for me. I realize, you know, I could pick a doctor and I know I can make a change, but I have asked you to initially pick this doctor because if you don't, you're, you're gonna have somebody complain that, you know, you didn't get the choice and they want the, the, the panel invalidated. And that is a trend I've really seen with claimant's attorneys, especially with inclusion of some of the large out-of-state personal injury mills, that they are looking for ways to get people off the panel. Even though that good doctors, doctors that are doing a good job with their employee, they try to get the panel validated so they can get control of the medical.

Speaker 2 (00:20:52):
And when you lose control of the medical as an employer, you lose control of the case. I would also, this is something that I've not heard people talk about, but I would also always wanna audit the doctors I have on my panel, get information about the, the doctors I've got on there. And the way I would do that is, you know, go and ask your employees who are, who are getting treatment about their experience with the doctor. And you ask 'em, you know, does, do you get to see a doctor? Or are you just seeing a nurse practitioner? Do you just get to see a, a pa a physician's assistant? Or you know, do you get to talk to the doctor when you might wanna ask him? You know, is it easy, you know, to, for the to, to schedule appointment? Can you get to a person or are you simply getting a voicemail?

Speaker 2 (00:21:43):
And if you leave a voicemail, do they call you back? And the reason why that is so important, well, for one thing, if your employee knows that you care about them and that you're in their corner and you wanna see 'em get better, they're less likely to go out and get an attorney. If something goes wrong, they're gonna like you better. They're gonna say, oh, you know, they really care about me. They're, I'm not just like a piece of machinery for them. They really care about me as a person. But the other thing too, and this is something I've found, is that claimant's attorneys are always looking for ways to get off the panel, get a doctor off the panel. And in a recent case, I had, I had an email from opposing attorney, claimant's attorney, and she wrote me and said, yeah, we think your panel's invalid because with this, we've called this doctor four times and we have not been able to get through them, and he hasn't returned our phone call.

Speaker 2 (00:22:31):
Now, I will tell you that they probably were right, that doctor was hard to access because we had requested medical records from that doctor, and he wouldn't, his people wouldn't respond. We'd call, we'd get voicemail, they wouldn't call us back. We had to keep constantly hounding them. And so there probably was truth to that. The unfortunate thing is this was a really good doctor. He was what I would call a middle of the road doctor. He wasn't pro claimant. He wasn't necessarily pro employer, but he was a conservative doctor. He didn't wanna do a lot of treatment that wasn't unnecessary. He, you know, wanted to see how the person would respond to treatment, and then if they needed more, he would do more. He was a really good doctor, but yeah, he was extremely hard for us to get in touch with. Now with that situation, I responded back to claimant's attorney and I said, well, what day did you call?

Speaker 2 (00:23:25):
What time is the day did you call? You know, I wanted to give the hint that, you know, maybe they weren't being honest with trying to contact his doctor. They called four times at 5:00 AM on a Sunday, you know, or, or something like that because, you know, I wanted them to get documentation. Maybe they didn't know documentation. But that situation later went away because we agreed to a change to a doctor, not in the panel panel that was a good conservative doctor that we liked and they liked. So I would, I would, you know, follow up, you know, and, and, you know, see if the doctors are accessible to employee. And you know, the other problem you might have with a doctors, you might have a doctor who's charity workers', compensation claimants, and then all of a sudden says, Nope, I'm not gonna treat a claim anymore.

Speaker 2 (00:24:09):
I'm done taking those cases. And you may not find out about it until employee goes and says, well, I wanna go to this doctor. The doctor says, well, I'm not treating workers' comp patients anymore. Tells his attorney. And the attorney says, oh, in ballot panel you only have five doctors accessible. So you need to always make sure that the doctors or clinics that you have on your panel are continuing to see patients. 'cause They may not, they may decide not to see patients, and you're not gonna find out about it until you have a case and your employee can then go to anybody they want to. I would also follow up with the adjusters and defense counsel. If one has been assigned to your case, you know, ask him, well, what do you think of this doctor? How's this doctor doing? Is this, you know, opinions, you know, valid?

Speaker 2 (00:24:51):
Do you like his opinions? Are these, you know, opinions, ones that are questionable? And the the reason for that is that doctors' treatment philosophy can change over time. Over the years I've had a number of doctors that had the reputation of being conservative doctors not doing a lot of, of unnecessary treatments being willing to re, you know, release people back to work in a, you know, timely manner. But as I got older and more entrenched, their practice, they started to change a little bit where they started to do more treatment. They started to be more willing to keep people out of work for longer periods of time. And the only way you can really gauge if someone is changing their treatment philosophy is by talking to the adjusters and the defense accounts. So probably more of the defense counsel than a adjusters.

Speaker 2 (00:25:43):
And the other issue, if you have a conservative doctor who's now changed to being a liberal doctor, is that in workers' compensation, all of the hearings are heard by administrative law judges. So the judges become very, very familiar with the doctors. If you have a jury trial, you have 12 people who may or may not probably haven't heard of the doctor. But in workers' compensation, you have one person who's gonna be very familiar with the doctors and they're gonna know the reputations of the doctors. A lot of the ajs have done either defense been a defense attorneys, or come from being a claimant's attorney. So again, they're very familiar with doctors. And so if you have a conservative doctor, a doctor who's had a reputation of being conservative, who gives you a bad opinion, that really is like a double whammy. 'cause One, not only do you have a bad opinion, but two, you've got the bad opinion coming from somebody with a conserved reputation.

Speaker 2 (00:26:38):
So the ajs and the health division of the state board, they are going to give that so much more weight. If you have a bad opinion from a Conserva doctor and you're an employer insurer, you can go get your IME. And it might be really good, it might be thoughtful, but they're gonna give so much more weight to that conserva doctor on your panel. 'cause Now giving you a bad opinion. So that's why you really need to keep up with your, your doctors and make sure that you know their treatment philosophy. And the other other thing that I would also do, and I would, you know, continue, you know, check with the com, the state the composite State Board of Medical Examiners. So the composite State Board of Medical Examiners is the licensing board for physicians and other practitioners of the Healing Arts in Georgia.

Speaker 2 (00:27:27):
And on there you can get information about how long that person's been a doctor, where they went to residency, where they went to schools but in addition, it also show if they've ever been disciplined, it will show if they've had medical malpractice settlements or medical malpractice judgments against them. It'll also show if they've had criminal convictions. And you might be thinking to yourself, well, how can a doctor have all that self practice? It happens. Back some time ago, there was an orthopedist indicator, Georgia, this man was sexually assaulting some of his patients. He was touching them inappropriately during his examination. Some of these people went, complained about him. The composite state board of medical examiners suspended him for a while, then let him go back to practice and medicine with the requirement that he have a, a female nurse with him or a female PA whenever he was seeing a female patient.

Speaker 2 (00:28:24):
Scary but true. The doctor I mentioned earlier who was quick to cut on patients, he ended up having a drug addiction problem and was suspended for a while, came back after treatment, and he's now back to seeing patients. Pretty scary. I wouldn't want family members to go to them, to either one of 'em, and I certainly wouldn't wanna send employees to them either. Another thing about malpractice settlements is that, you know, there may be, it may not necessarily reflect a bad doctor because their standards of care can change over time. But the problem is, if you have a doctor who's got a malpractice settlement in their past, and you have to go and litigate a case, you know, the RI comes in with a doctor who has a completely clean record and they bring up the fact that your doctor had a malpractice settlement palate, division state ALJs are probably gonna go with the ISI doctor and, and not give as much weight to that doctor.

Speaker 2 (00:29:27):
So make sure you keep on top of your panel, make sure that the doctors you put on there are continuing to see patients. Here's another sneaky one too, that, that might, you might miss. So you, you have the requirements. You have to have one orthopedist, at least one orthopedist on your panel. Well, you might have a practice group that has an orthopedist. They might have a neurologist, a pH, a physiatrist and orthopedic surgeon. Not just an orthopedic, but an, an orthopedic surgeon is a requirement. Let's say that that orthopedic surgeon decides to leave that practice group. You may not get notice from that practice group that he's, that that doctor's left, that he or she has left. And you have a claim, you have a savvy claimant's lawyer said, oh, you know what? I know that that clinic lost their orthopedic surgeon. That's an invalid panel. I'm gonna go and, and, you know, send this to this very friendly doctor to me. So make sure that if you don't have a doctor who stands alone as an orthopedic surgeon on your panel, that if you have one who's in a clinic that you keep on top of who's in that clinic. So you know that you don't violate that requirement without knowing that she had violated it. See, and you also wanna talk about that.

Speaker 2 (00:30:49):
Yeah. So that's everything I want you to know about the employer's post panel position. There is another way to meet your obligation to provide medical care, and that is with a a managed care organization certified by the State Board of Workers' Compensation. That is where you don't have to have a panel a self insurers can do it and insurers can do it. If your insurance doesn't insurer doesn't do that, then you can't get a managed care organization. Like I said, a self-insured can, but an insurer can. But an employer can't meet their obligation with a managed care organization. The insurer's the one who has to contract with the managed care organization. But if your insurer does, and that's an option for you, make sure you post your panel or post the notice of the managed care organization in a conspicuous place and that you explain to your employees how to go about getting care through that.

Speaker 2 (00:31:47):
Panel that's not, I don't really have, I rarely, rarely ever see managed care organizations. I almost always see panels. I like having the panel because that gives the employer choice in that if you defer to a managed care organization, then you're basically giving it up to an adjuster. An adjuster's change, insurance companies change change, and they may not put the care, they may not have the knowledge that you might or should have and in picking the doctors alright, well let's go on to the second costly mistake that I run into a lot. And that is where an employer will fire an employee right off the bat, who has made a workers' compensation claim as costly. Because for the first thing is that it cuts off your ability to do a light duty job offer to an employee. So OCJ section 34 9 2 40 provides that if an injured worker, injured employee refuses employment that is suitable to his or her capacity, such employees shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the board such refusal was justified.

Speaker 2 (00:33:01):
And there are two ways to suspend benefits under two 40. The old fashioned way, the pre 1995 way was to get a job offer to the employee. The employee turns it down, then you go and request a hearing and you go to the state board. The, the second way is a little bit more complicated, but it's supposed to be more streamlined, is that you have an employee, they don't get valued by the authorized training physician. You then send a very detailed job description under a form WC two 40 A, the doctor approves it, has to approve it, I believe, within 60 days of the last visit of the employee. Then you take that, that job description and you attach it to another board form called the WC two 40, and you send it the employee and it gives the employee instructions of a date and time to show up for work.

Speaker 2 (00:33:54):
And if the employee didn't show up on that time be well, benefits are suspended. If they show up and they work less than 15 days, then you gotta reinstate benefits. And if you think you can if you think that there was an unjustified refusal, the of the employment, then you go back and request a hearing. So, second method was supposed to be easier, but in some ways I think it might be a little bit more cumbersome. So, you know, you have to go through all these extra steps before you can get to the hearing stage. But the, the key point here is that the state board gets determined if a refusal of employment is justified. And if you've fired your employee and you try and bring them back on light duty, the state board, the ajs, the appellate division, they're probably going to find that that refusal is justified based on the fact they're fired because it doesn't look like a really, a good faith job offer.

Speaker 2 (00:34:51):
You know, you, you fire the person and you come back and say, Hey, just kidding, we didn't really mean that we're all good. Come on back. We got this light duty job for you. Probably not gonna go sit well with the state board. You're probably not going to bring them back. I can't tell you for a fact that an A LJ would never find a few refusal unjustified probably are, but they probably are in most of those cases. So don't, I wouldn't fire your employee 'cause you take off a really good option for for the table. I'll get to that in a minute. The other problem that you can run into, and this is, and I know this because of my employment, my employment background, coupled with the workers' compensation background which is kind of an oddity. You don't find many comp attorneys who have any idea about employment law either on the claimant side or on the employer side, which is amazing to me.

Speaker 2 (00:35:44):
It's, it's, they go hand in hand, but they claimant's attorneys, defense attorneys don't seem wanna know anything other than claim than workers' comp. But other costly mistake you can get as you might have, get yourself in trouble with the FMLA if an employee who's, you know, worked their requisite number of hours and you're a big enough employer, they get to up to 12 weeks of unpaid medical leave in a 12 month period. And they can, they can be on work compensation disability benefits, and you can run their FMA at the same time. Well, if you fire them while they're on disability, but they haven't exp haven't used up their 12 weeks, then you could find yourself on the bad end of A-F-M-L-A lawsuit. The other thing that you can run yourself into trouble, unemployment law whereby firing a workers' compensation present, workers' comp is the Americans with Disabilities Act.

Speaker 2 (00:36:37):
Now, the a DA doesn't require an employer to create a light duty job. So let me make that clear. But if you have a job that if you can, if you can make a reasonable combinations of the job the employee had, then you might have that obligation under the A DA. But if you fired them you might have a problem with, with your ad, with the a DA. So you know, those are two other issues that you, you run into. The final one, and this isn't really so much specific to Georgia, if you're from outside of Georgia your state probably has a workers' compensation retaliation statute. Georgia is one of like only four jurisdictions one of two states that doesn't have a retaliation statute that was either created legislatively or created by judges. There two are territories in the United States, but they're not actually states.

Speaker 2 (00:37:34):
So we're post George kind of an outlier. But if you, if you're outta state, if you have, if you're an employer and you've got people who are outta state who have, you know, were outta state claims in addition to you Georgia claims, just know that you, you, if you fire them, you can get yourself in trouble. And Wisconsin, they have it where you actually actually have to offer that employee's job back to them, their original job back too. So it's a combination of including sort of A-F-M-L-A restriction or protection and workers' compensation. So that's another thing you can do. Now, the thing I want to come back to is, a few weeks ago I had an employer who had a workers' compensation claimant, and they called us up and they talked to me specifically and said, you know we, we wanna fire this guy, can we do that?

Speaker 2 (00:38:21):
And I, I told 'em what I told you, that if you do that, you can, you know, limit your ability, you know, to bring them back. And they said, well, you know, we, we still like to fire 'em. And so then I just asked to 'em, I said, well, why, what is the economic benefit or other benefits you're going to get by terminating this employee? A little bit of silence on their side? And they said, well, we don't have any benefit. There's no benefit to, to do this. So I said, well, in that case you may not wanna do it. They said, yeah, you know, you're right. We're gonna, we're gonna keep them on the payroll even though they weren't being paid, but we're gonna keep 'em on the book as, as an active employee. And the thing I would tell an employer, make sure if you're doing, if you're taking the action, know why you're taking that action.

Speaker 2 (00:39:11):
Don't just take it as a knee-jerk reaction. Have a specific goal or reason why you do it. And I told that employer, I said, look, there are times when there's a business reason why you might want to take a reason that's not, that's or take an action that's not necessarily in your best legal interest. I will tell you what's in your legal interest. You have to make a decision if, if, if there's a business reason that trumps that. But make sure you have a reason for why you do something. Now, the reason why there, there's another reason why this can become a cost of mistake. The, the first, of course, is that it, you might have employees on disability a lot longer and gets more indemnity payments. The other problem with terminating employee is that you take away a very big bargaining ship in settlement negotiations.

Speaker 2 (00:40:01):
If you have an employee that's on light duty and you might have a light duty job and you're trying to negotiate a settlement, you can argue to that attorney. I mean, you may not want him back. He, he or she may not want to come back. But the fiction is, I really want to come back and I can't 'cause of the disability, you know, we, we want you to come back. You know, as, as the argument that you make to that employee. 'cause A lot of times employees really don't wanna come back, but if you've fired them, then they know they aren't going to have to come back. And now you've taken that off the table. But if you have an employee who'd be not fired, if you've prepared a light duty job that maybe the doctor would approve, then you can say, well, you know, your case isn't worth a hundred thousand because we can bring you back and that will cut off you know, 18 months of, of temporary total disability.

Speaker 2 (00:40:51):
And you'll have to work. But we know we've got exposure, but we can cut off our exposure. Our exposure is the total amount. Then the employer insure is gonna pay in a case. If you can cut off the, the exposure, if you can limit your exposure, then the summit value of the case goes down, you can get it for less than you would. So, but if you take that off the table, the light duty offer, then they are gonna ask for a lot more and you're gonna settle for a lot more. So the next problem I've found goes to bad investigation or no investigation. If you, if you don't do an investigation or you do a very bad inadequate investigation, the information that the adjuster gets isn't gonna be good information. The adjuster is gonna look at your case and say, well, you know this accident definitely didn't happen here, or this person didn't give notice within 30 days.

Speaker 2 (00:41:47):
I'm gonna controvert it on those reasons. Once a adjuster has controverted a claim, you lose control of the medical. So again, I told you how important keeping control of medical is if you, if you controvert it and you are wrong doesn't matter if you then put the PA person back on benefits. Doesn't matter if you accept the case is compensable and try to make everything right. Once you've controverted you've lost control of the medical, it doesn't matter what you do from that point. And one of the areas I've, I've found what can happen in with a bad investigation is that as, as I said, you, you have 30 employee has 30 days to give you notice that they've been injured on the job. The, the statute says they should do it immediately or as soon as practical, but at no event later than 30 days or, or you have to do it within 30 days.

Speaker 2 (00:42:41):
What can often happen is you might have an employee who's at home, it might be a Monday, he calls you, calls up the supervisor and says, yeah, I hurt my foot, I can't come into work. And the supervisor's like, okay, I understand. Doesn't ask him anything further. From there, then the person starts getting treatment, they can't come in. They might take short-term disability if they have it, or they might ask for their FMLA 30 days comes and goes. And then they hire, they then come to you and say, well, I got hurt on the job. And then you say, well, you never told us you got hurt on the job. You just told us you were hurt. So they go hire an attorney, the attorney files a WC 14, maybe request a hearing. The adjuster asks you, they and you, and you tell them, well, they never told us they got hurt on the job.

Speaker 2 (00:43:28):
And the adjuster goes ahead and controverts you're probably gonna lose that case on no notice because the Supreme Court of Georgia has held that if the employee gives notice of the injury, the employers should try to conduct an investigation to find out if they got hurt on the job. In the, the the case of of Gossage V versus Dolphin fire department 1987 case an employee told his employer that he sneezed and hurt his back. Employer doesn't do anything. 30 days comes and goes person makes a claim. The adjuster Controverts that they didn't give notice within 30 days. I think they also controvert and said, this isn't didn't arise out of, and of course employment go to a hearing. The A LJ says, no, no, no notice. We're denying a claim based on notice. We're not going any further.

Speaker 2 (00:44:27):
Appellate division gets it, affirms superior Court gets it, affirms appellate court appeals gets a case. Affirms gets to Supreme Court. The Supreme Court says, well, no, it just says they have to give notice of the injury. They don't have to tell you that they got hurt on the job. They reversed and they remanded back to the state Board of Workers Compensation to go and conduct a hearing on whether or not there was an injury that was compensable. That arose out of an of course of employment. But that was a lot of work, a lot of litigation for that employer that then had to go back and, and defend itself on the the merits. So if you have an employee who comes and says, I got hurt, I'm hurting. You know, obviously if they get hurt on the job, you want to ask 'em, did you get hurt here?

Speaker 2 (00:45:17):
You know, where'd you get hurt? But if they just call you from home and they ask and they tell you that they've been injured, and ask 'em, ask 'em where they got hurt, ask 'em how they got hurt, ask 'em if it was work related. If they tell you it wasn't work related, then maybe send an email to them or a letter just saying, no, this is a confirm that we had this conversation on this date at this time, and you told us that this wasn't work related. One case I had many years ago is that had an employee who worked with working, worked a machine that had to have a a foot pedal and they hurt their foot and they told the employer I hurt my foot. And didn't really get around and tell the employer that hurt their foot working the machine from repetitive use, but that was how it got hurt.

Speaker 2 (00:46:05):
And the employer tried to or con or they controverted based on notice. And it was one of my rare claimant's cases and I said, no, they told you they hurt their foot and they work with their foot. You should have asked them where it happened. And you know, they were, we were right. They, they should have. So the other thing too is you also wanna get a good information for your adjuster. Doctors will call, will typically call the employee when they decided to controvert a case. They may not call an employee if they're gonna pick up on benefits. They, when the, the recorded statement is usually what they've already made, it's and kind of brought across insurance in general. The recorded statement is done when the insurer has already decided that they're going to deny the claim. And but you wanna make sure adjuster has a lot of really good information to be able to determine whether or not they should deny the claim or not.

Speaker 2 (00:47:04):
So when you, when you have a person who gets injured and they say, yes, I've got hurt at the job, then, you know, ask that employee what date do they get hurt? Ask 'em what specific day they got hurt. If they give you, you know, they tell you a Friday, but you know, and they say July one, or I'm sorry, July, let's see, July, yeah, July one of this year. You know that July one was not a Friday and Friday was the 4th of July. So maybe they got hurt on the fourth on their own, but they're trying to backdate it to something on the job. So, you know, get them to tell you not only the date, but the actual day. Get from them the actual time that they got hurt. Ask 'em where specifically God they got hurt. Ask them who is nearby. Ask who might have witnessed it.

Speaker 2 (00:47:49):
Ask him how it happened. You wanna not only ask him who witnessed it, but you wanna ask who was nearby because maybe all the witnesses are, they're buddies and there were other people around who could say, no, this person didn't get hurt there. They got hurt at the 4th of July holiday barbecue. Also make sure you check all your security cameras. If you have security cameras at your look, your facility, go and check them and don't erase them no matter what. Even if you look at them and you see nothing happened, nothing going on, just blank screen, save it. Because if you don't save that video footage, you might be subject to as spoliation order. And what does that mean? So a lot of, and this isn't maybe as key in workers' compensation, it would be much more in a liability case, but the claimant's attorney could go and file a motion for spoliation saying that you had evidence that showed what happened to the, to the employee, but you purposely destroyed it.

Speaker 2 (00:48:52):
And because of that you should be sanctioned. And what the sanction they're gonna ask for would be, one, a presumption that the video would back up the employee's statement. And, and two, they would also ask as a further sanction that you not be permitted, put forth any information about what was on the video then. In other words, you couldn't have a person who witnessed it, who, who watched the video testify that they looked at. There was nothing on there. And there's also a an an old evidentiary code in Georgia which is probably still good law though we've changed our evidentiary code. But it was that if you rely on oral testimony rather than bringing in a picture or a video or a document, the presumption is that had you brought in that picture, that video, that document, it would've been adverse to what you testified about.

Speaker 2 (00:49:44):
So save your video until after the case is done and over. It's settled. You've tried it, you've gone through all the appeals. Make sure you save that video until the case is completely over because you don't wanna be restricted in your defense from because of a, a spoliation order. And the other thing too is employee says, yeah, I was working by the, the, the copy machine and I slipped on water and I fell and you have the, you know, copying machine and then state and timestamped and shows that nobody was there when that person said they got hurt. You know, then you can, you don't have to go and tell the judge, well, we looked at it, there's nothing there and we erased it. You can say, well here judge, here's this eight hours of video that you can take a look at at your leisure.

Speaker 2 (00:50:26):
We can tell you there's nothing on there. But don't hurt yourself by destroying any, any sort of videos or evidence. Kind of running a little bit, got about 10 minutes here and then we can get through these last one in 10 minutes. Another problem I see is failing to complete a WC one first report of injury. You know, and then sending that to the insurer. Every employer must complete immediately upon knowledge of the injury. A first report of a a w, the first report, WC one, and they send it to the insurer. The insurer then will complete the, and then file to the state board. Why is this a costly mistake? While any person who willfully fails to file any form or report required by the board shall be assessed a civil penalty of not less than a hundred dollars, no more than $1,000 per violation.

Speaker 2 (00:51:16):
So, you know, it's not a horrible civil penalty and it doesn't get assessed a lot because a lot of people don't know what if asked for it. But you don't wanna be on the bad end of the A LJ assessing a civil penalty of a thousand 'cause you didn't file WC one. Another issue, and this is probably more geared towards those who are in the construction industry, but if you have any sort of a subcontractor or independent contractors that you're hiring, this is one you really wanna be on, on the lookout for, there is a concept called the statutory employer. And that is where a principal intermediate or a subcontractor can be liable for compensation to an employee injured while in the employee of any of those subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.

Speaker 2 (00:52:09):
Now, that's kind of rushed through that 'cause there's a lot of of verbiage there. But basically if you are the, the best example would be your general contractor and you're building a house, you hire an intermediate contractor to do, you know, the, the walls. The intermediate contractor then hires a subcontractor who's gonna do framing and then for whatever reason they hire that, that sub hires another sub will continue to do the framing. That employee of the second sub, the lowest on the, on the ladder here gets hurt, doesn't have insurance. That individual can go after the sub immediately ahead, can go after the intermediate or can go after the principle. It's the choice of the injured worker. Now, the ones who are up the ladder on the chain, they can go and, and try and get reimbursement from the sub. But do you have a sub who doesn't have insurance?

Speaker 2 (00:53:07):
They probably don't have money. You're probably not gonna get collection. The, the rule is 34. The, the code section is 3, 4, 9, 8. And that says that every claim for compensation shall first be presented to an instituted against the immediate employer. If such immediate employer is not subject. And this is important, if such a media employer is not subject to the chapter by reason of having less than the required number of employees, than such claim may be directly presented. An I instituted against the immediate, or sorry, intermediate or principle contractor. So let's think about it. Let's, let's go and dissect that a bit. You have a subcontractor, immediate contractor principle, or you could have a sub, sub immediate and principle that subcontract the one who hires one employee. He's not, he or she is not obligated to have workers' compensation insurance because you only have to have workers' comp coverage if you have three or more employees regularly in your employee in Georgia.

Speaker 2 (00:54:07):
So, so sole proprietor needs some help hires one person. He has, you know, two employees. He doesn't, he wouldn't necessarily count himself but could, if he opts to get insurance, he can opt into being up. But he has one employee, he's like, well, I don't, I don't have my three, I don't have to have coverage. And he is right. He doesn't have to have coverage. The problem is if you hire that person and one of their workers get hurt, they can go after the sub above the intermediate or the principal. So my recommendation here is if you deal with you know, subcontractors always verify that they have insurance. And if they don't require all your contractors to have insurance, even if they're sole proprietors, 'cause the sole proprietor can opt himself or herself into having workers' compensation coverage and then, you know, their employees would be too.

Speaker 2 (00:55:01):
And they may not, they may not be acquired, but at least you don't get hit for that very you know, by surprise. And the other thing too is important if you have a reverify that they continue to have their coverage, you can get a certificate of coverage that they'll, the insurer will issue to them. They'll show that they've got coverage make you know a note, put it on a timer on a calendar when that coverage expires, and make sure that you can, you know, verify they, they've got new coverage in effect when it expires. You might wanna check a week before it expires. Or certainly when it does go and check and they don't have coverage, you know, get them off until they can show that you know, it may not, unless you want to take the gamble that they you know, are not gonna have a employee make a claim against you.

Speaker 2 (00:55:49):
The final problem I've, I've had, this probably doesn't apply to, to many people here but please stay on. We don't have much longer, and this is still interesting, I think as I've said, as, as I said, you have to have three or more employees. If you have three or more employees, regular service within Georgia, you must have workers' compensation coverage. Some employers will just say, ah, you know, I don't wanna pay for this coverage. You know, sometimes I have three, then I drop down to just me. And, you know, I don't, I don't want that to the expense. Well, if you don't have workers' compensation coverage, that's a 15%, it's gonna be most likely a 15% increase in weekly benefits deal, late payment of income benefits. 'cause If you don't have coverage and you have to fight over it you're, you're, you're, you're probably not gonna pay within 20 days.

Speaker 2 (00:56:35):
You also ought to have an automatic 10% increase in, in income benefits. And if they have to hire an attorney to get benefits, you're gonna have to pay that attorney's, attorney's fees. And the other issue that you can run into why this is a costly mistake is that the person, if you have a, a corporation or you know, a business, the person or persons who are responsible for obtaining workers' compensation insurance for the employer are personally liable for paying benefits if the employer isn't solvent. So you have a corporation doesn't have insurance. You say, oh, well, we'll just bankrupt it. We have no money. Then that employee can go after the person who should have gotten the insurance coverage in their personal capacity. A common mistake and oh, and it's also a misdemeanor. It may, you know, if a corporation, you might be shielded the, the corporation has a misdemeanor and we get a fine.

Speaker 2 (00:57:25):
But if you have a all proprietor and you, you know, have employees and you don't have the coverage, then you might be faced with a misdemeanor. A common mistake that is made by employers here where they don't intentionally violate law of getting coverage is that if you're corporate officer, you can opt out of having coverage, but you have to actually, you have to exempt yourself. You're not, it's not a situation where a corporate sole proprietor has to opt in, A corporate officer has to opt out. A corporate officer is automatically considered an employee unless they've opted out. So you have three corporate officers, you don't opt yourselves out, you now have to get coverage. You might, you have having a one or two employees, you have your three officers, but you didn't think you were subject to the act 'cause you thought corporate officers didn't count employees.

Speaker 2 (00:58:19):
No, you're, you're on the hook for having workers' compensation coverage. And this is a and you can, you can opt out only up to five officers. So if you have more than five officers you can't opt out any beyond that. This is something that's an interesting spin on this. So I'll try and give an example 'cause it's kind of hard to understand the, the code, but any employer subject to worker's compensation before filing any exemptions. So either there are, you have three corporate officers, you didn't get the exemptions beforehand. So any exemption shall remain subject to this chapter without regard to the number of exemptions filed. So any employer subject to workers' compensation before the filing of any exemptions shall remain subject to this chapter without regard to the number of exemptions filed. However, in the event that there shall be no covered employees, once exemptions are elected, no coverage shall be required less than until additional employees are employed.

Speaker 2 (00:59:17):
So let's say you have three corporate officers, they hire an employee, they didn't exempt themselves out, so they have to get the coverage. They can't not have coverage unless they get rid of that one employee. If they get rid of that employee, they then exempt themselves out. Then they don't have to co have coverage. The problem here is that if you fire the employee quickly, opt out, then rehire that employee. I'm not sure how a court is gonna look at that. I'm not sure how the state board would look at that. It has to be linked, done in good faith. So that'd be a, a risky thing. But if you if you are a corporation and you don't wanna have coverage opt out now get, get yourselves opted out because if you have an employee, if you have to have the coverage, now you're stuck with having the coverage until something drastically happens with you.

Speaker 2 (01:00:10):
Other big problems here is misclassifying employees as independent contractors. A lot of employers will come to me and say, well, no, we didn't have insurance because we have independent contractors. Well, you can, you can do that. But a a person or entity shall otherwise qualify as an independent contractor and not an employee. Only if such person or entity meets all of these following and three criteria. First, the party it must be a party to a contract written or implied, which intends to create an independent contracting relationship, probably easily done. Number two, the person that you're claiming is an independent contractor has to have the right to exercise control over the time, manner, and method of the work to be performed. And three is paid either on a set price per job, or per unit basis. They can't be salaried, they can't be hourly.

Speaker 2 (01:00:56):
So if you have an independent contractor, you're paying 'em hourly. They're not an independent contractor for workers' compensation purposes. And you're gonna have to have coverage if you have the three employee threshold, but on a salary. Again, they're not no longer an independent contractor. Let's say you have a set price, you know, per job, but you tell 'em, well, you gotta show up at this time. You can't work beyond this time and this is what we want you to do and this is how you wanna do it. Again, they're not gonna be considered independent contractors. Even if you tell 'em you gotta, you know, you can work from eight to five and you gotta take your lunch break here. Again, you're setting the time. They're no longer an independent contractor. So it is now one o'clock and those are the common mistakes. If anybody has any questions, I will be available for like the next 10, 15 minutes or until everybody's gone.

Speaker 2 (01:01:45):
So please hope you enjoy this. I hope you learn something of value. If you have any questions about any of this or if you want to audit done what your business you want to ask, you know, questions, please feel free to gimme a call. I should have mentioned that at the get go, but certainly more than happy to take your calls and answer your questions if I can and, and hopefully give you some guidance so you don't find yourself in trouble. Alright, well I hope you all have a very happy weekend and again, I'll be more than happy to take questions If you want to have me send you

Speaker 3 (01:02:19):
Board rule or law or case or anything like that that was discussed here today or not discussed or again, if you have any questions or you wanna do an audit, I'll be happy to do that and otherwise I will just be signing off now. Alright, have a good weekend.