Workers' Comp Exposure: How to Protect Your Company Before, During, and After a Claim

This webinar will discuss the actions employers should take to protect themselves against workers’ compensation claims when hiring employees, the actions employers must take when an employee reports a claim as well as actions that an employer should take to reduce exposure when an employee has made a claim.

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Thomas L. Walker (00:00):
Welcome to the Lawson First Friday webinar. This is of course on workers' compensation, how to reduce your costs before, during, and after a workers' compensation claim. I'm Thomas Walker. I'm the attorney who does workers' compensation here at Wiley Lawson. The value that we can bring to you and your company is that unlike an insurance defense firm or a workers' comp defense firm, or most workers' comp defense attorneys we do employment law. And I'm very well versed in employment law. Workers' comp is only one small portion of my practice, and I handle a lot of, of work in employment law as well. And the reason why that's important to you specifically as employer, is that there's a lot of interplay between the Americas with Disabilities Act, the family and Medical Leave Act unemployment insurance the Fair Labor Standards Act wage. Now, you know, over time, while as these all come into play, and unfortunately, workers' comp attorneys generally only male workers' compensation, so that makes us, and me in particular a little bit unusual in that I know employment law as well as I do workers' compensation.

Thomas L. Walker (01:06):
So, let's just jump right into the webinar because I'm in a Georgia Attorney when I practiced here in Georgia for 34 years. This is gonna be a little bit focused on Georgia Workers' Compensation law, but if you're from outta state please stick by because there are things that are general principles that I want to tell you about as well, and I think you'll find value in that. And some of the things that are Georgia specific, there's a, a corollary rule or law in other states as well. So before the before part of handling your claim and reasoning your cost, the first thing you wanna do is you wanna make sure that if you have three or one employees in Georgia, that you have either obtain workers' compensation insurance or you have qualified as a self-insured with the State Board of Workers' Compensation.

Thomas L. Walker (01:58):
You can't go and be self-insured unless the state board approves that. And you do need to have workers' comp coverage if you have three or more employees. There are a couple of exemptions though. The first is that common s by railroad engaged in interstate trailer commerce do not have to have Georgia Workers' Compensation. And the reason for that is that there's a federal law that applies to railroad, railroad workers. In addition, farm Lloyd workers are exempt and domestic servants. So if you have you know, a nanny or some other housekeeper or other type of domestic servants, you don't have to gab workers' compensation for them. And the, the third major area is independent contractors. And I'll, we'll talk more about independent contractors as an area that oftentimes employers don't get right and expose 'em to a lot of expenses and pain later on. Now if you're a corporation or a limited liability company,

Thomas L. Walker (02:58):
You can exempt up to five corporate officers or five members. The way you do that, and I'll share a screen here, is that you will use what's called a form WC 10. And hopefully you can see that there. You fill us out, this is a, from the state board, workers' compensation it's fillable in Georgia. Everything you do and workers' compensation is pretty much a form for, so you can do that here. The other thing you might notice that you can also if you're assault card can elect to be, you know, covered under workers' compensation. And the same as well, if you have foreign laborers and you want to elect to do that, you can do that on this WC 10. But the top part here, so what I was talking about now is that corporation is a limited companies you can elect to reject the coverage.

Thomas L. Walker (03:54):
And then if you wanna get back, you can do that. No, why would you want to re I'd elect to not be a part of the workers' compensation system? Well, if you, if you have five corporate officers or three corporate officers, if you don't elect to not be covered, then you have to buy workers' compensation insurance. But if you have just the three corporate officers or the to five corporate officers, you know, or limited liability company members, you can elect to be out of it. And then you'd have to po purchase workers' compensation insurance. And if you're in a business, you know, maybe if you're selling insurance, there some business where you really don't want to new workers compensation terms, and you really don't wanna, want to make that expense for that reason. But there is a something to be cautious about that you can only exempt the five.

Thomas L. Walker (04:43):
And so you know, if you get up to two, the Narcan, but if you get up to three, then you're going to have to get insurance anyways. The other thing is that if you had, and if you didn't file the five exemptions, you had to go and get your insurance coverage and then you want to elect out, then you're still gonna be required to have coverage. The, the way the law is written is that any employer subject to the Workers' Compensation Act before the filing of any exemptions, it shall remain subject to the 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 covered shall be required unless un until additional employees are employed. So what, what does that mean? So let's say you are an employee, we have your five corporate officers, and then you have two employees who do work.

Thomas L. Walker (05:34):
You get the workers' compensation coverage and you realize, well, why are we spending all this money? We're going to file the exemptions for our corporate officers. So the five corporate officers exempt it out, you still have to have the workers' compensation insurance because you didn't exempt them out before you reached that three employee threshold. But if the two employees that you had later quit and just down to the five officers who had now exempted themselves out, then you can decide not to get the workers' compensation coverage. However, the way the statute is written is that if you then hire an employee or two, then you're gonna have to go and get that coverage back again. So when you're forming a corporation or an LLC, this is something you're gonna wanna think about. And if you wanna get your exemptions you know, do that at the outset because it's one of those situations where you might have to later get coverage and then could be out and in and out, and that's just difficult for you.

Thomas L. Walker (06:31):
There are real consequences if you don't get workers' compensation coverage or if you're not authorized to be a self-insured and an accident happens. First off, it's a misdemeanor for refusal or willful neglect to get workers' compensation insurance, and that's pleasurable in Georgia and most other jurisdictions by up to a year in jail and a thousand dollars fine as the person who was supposed to get the coverage, if they refuse to get the coverage or will and neglected, they could be prosecuted. Now, from a practical standpoint, I can tell you in 34 years, I've never heard of somebody being prosecuted for not having workers' compensation insurance. So it's not something that happens very often. Probably not something that I would hear about anyways, but it is on the books and it's something that you need to really be aware of. The other thing, and this is the more likely result if you don't have insurance and there's an accident, is the state board can assess a civil penalty against a person who is responsible for getting the insurance.

Thomas L. Walker (07:32):
So that is a fine of a minimum of $500 and up to 5,000. And that I can tell you I have seen assessed. So, you know, that is something that you certainly don't want to find yourself having to pay out. The other thing was that the state board, if, if an employee has to hire an attorney to get benefits where there's no insurance, the state board can, and my experience always will do this, they'll assess attorney's fees for the employee who hires someone to get workers' compensation benefits. The estate board also is authorized to increase the weekly income benefits by 10%. And my experience is that if there's no insurance, they will do it as a matter of, of, of course, they won't even think about it. And the other thing also to be concerned about is if you don't have workers' compensation insurance let's say it's a corporation, a corporate agent was supposed to get the insurance, didn't do it and you say, well, you know, we have a corporation, we're protected from personal liability.

Thomas L. Walker (08:30):
No, you're not. If you have an insolvent corporation, the person or persons who's responsible for hiring for purchasing numerous compensation insurance will be personally liable for what's owned under worker's comp. So really, you don't want to play around with not getting the insurance. It will not end well for you if you have an injury. I mentioned self-insurance. Self-Insurance you can, is a, is a really good way to cut your costs. But you have to go through the state board in order to become self-insured. It's listed on the state board's website as a WC seven packet that you can't access it. You have to actually contact the state board and ask them for the packet, and then there'll be different financial obligations and responsibilities and, and solvency that you have to show to them and bond and that. But I think it's a really good way to be active in your workers' compensation.

Thomas L. Walker (09:29):
It's a good way to limit your costs. And I especially like it when employers are not only self-insured, but self-administered. A lot of times with self-insurance, you'll still be going through an insurance company's adjusters and they will pick your attorney for you. Although if you're self-insured, you might have some flexibility and, and hiring the attorney you want. But if you're self-administered, you can do everything and you can decide what case you wanna settle. You can have a much more active role in the administration of your claim. Now the second thing I wanna talk about is the, the harm that can come to your employer. If you misclassify an employee as an independent contractor, remember earlier I mentioned that independent contractors are exempt from having to get employ workers' compensation insurance. If you have independent contractors, you don't have to have comp for them.

Thomas L. Walker (10:21):
They don't count as an employee towards a three. And the, the problem I've found is that the State Board of Workers' Compensation, just as the courts, and likely in other states as well, this, they're not going to look at what you call the relationship. You can call an an employee and then a contractor, but they're going to look at the reality of the situation and specifically the courts, the state board and, and other states as well. They're going to look at who has control of the work product. So they're going to look at, if you're in a, so if you're an independent contractor, you basically tell the independent contractor, this is the end result I want and I want it by such and such date. And that's it. That's all you can do. If you tell an independent contractor, okay, I want you to show up at 8:00 AM and you can leave at five, you can take your break at one o'clock.

Thomas L. Walker (11:12):
Here are the tools you're gonna use and these are the, the steps I want you to do to reach this end result. And oh, I'm gonna have my old supervisor over you. That's an employee. You can call an independent contractor, you can pay 'em under a 10 99, but they will be considered an employee. And the danger is that employers will sometimes label everyone independent contractor, they'll think they don't have to have insurance, and then they'll find out that their independent contractors are in fact employees. And then not only do they have to boost Muslim for all the workers' comp, and then they have the extra 10%, they have the attorney's fees, they have the civil penalties on, on top of that. So it, it's not, the other problem is an additional cost employees that workers' comp attorneys don't typically tell you about.

Thomas L. Walker (11:57):
If you misclassify an employee for one thing, you, let's say you, you are, you have an insurance co you have an insurance, you know, you, you were trying to cut. I wouldn't have a situation where I had a clerk contacted me and they said, yes, we have comp coverage, we have five supervisors, and then they supervise all of our independent contractors. If you misclassify someone who should be an employee, as an admitted contractor, your insurance company is gonna do an audit and they're gonna come back to you and say, okay, you know what? You gotta pay more. You owe us more money. And the difference between workers' comp and liability insurancers is if you have liability and your insurance like automobile insurance and you don't provide accurate information to the insurer, they can deny compe or deny coverage for you then. And then we could be su per, well, you'd be sued personally anyways under an auto case, but then you'd have to pay out of pocket.

Thomas L. Walker (12:52):
Whereas if you have your insurance, then the insurance company will pay for whatever you, you owe or provide false information or bad information to an insurance company. They can deny coverage. And then that falls on you with current workers' comp because it's a remedial statute there to protect employees. This, the insurers can't deny coverage to you to, to the employee. But what they can do is they can come back and require you to pay more money to them and they can sue you if you don't. So that's one thing you don't wanna get taught up and you wanna make sure that you have active information so you get rated right and you're not having to pay more later on. The other problem that you can find yourself in is of course to not having insurance when you, when you should. You may also find yourself in trouble for not withholding federal and state income taxes.

Thomas L. Walker (13:45):
If you're misclassifying an employee, the government can come after you for not withholding properly. And for FICA as well. You also might be subject to Department of Labor wage and hour division investigation for minimum wage and overtime, you know, the independent contractor there, you can just say, here's the payment for your service, you know, for the pro for what you're gonna provide to us. But the employee, you've gotta make sure you're paying them the minimum age and that for any work they do over 40 to work week, they get overtime. So that's something else they could fire yourself trouble. And the final area is with Georgian is probably is, I'm sure the same in other states as well, but if you've missed a classified someone as an dependen contractor who really should be an employee, you might owe additional unemployment taxes for your unemployment insurance.

Thomas L. Walker (14:35):
So you really wanna make sure that you have classifi your employee and don't push that, you know, if you have a question about it, call an attorney and say, Hey, this is our idea. We wanna know what do you think of this person? Will it be an independent contractor or an employee? The other thing too is that in Georgia, the state port of the Workers' Compensation Act is liberally construed to find coverage. It used to be that the Workers' Compensation Act was caught, was liberally construed, and the judges would favor employees and the general, somebody said, no, no, that's not what we meant. We wanted to have it liberally construed to find coverage, but you have to still treat both sides fairly. So when in doubt the state board's gonna find coverage and not find an independent contractor. So that's not really probably gonna save good money in the end.

Thomas L. Walker (15:25):
The other thing you wanna worry about or or becau are cautious about when you before a claim, it is the concept of a statutory employer. So if you are, let's say you're a general contractor or an intermediate contractor, you know, you have your, your general contractor, they might hire an in intermediate contractor, then the hire subcontractors. If you are a general contractor and you're subject to workers' compensation, if you have three or more employees and you have to purchase a workers' compensation compensation insurance, you might find yourself also having to pay the workers' compensation insurance for your intermediate or your subcontractors if they don't have coverage. And the other thing that's may be surprising, although there's a good reason for, and I'll explain that in a moment, but let's say you're a general contractor, you have more than three employees, you have your workers' compensation insurance, and you go and you hire a subcontractor, and the subcontractor is a sole proprietor and his one employee.

Thomas L. Walker (16:26):
So the, the subcontractor had no legal obligation to have workers' compensation coverage. The problem was, though, if their employee gets hurt, they can then come after you as a statutory employer. Doesn't, it doesn't seem fair. But the reason for that is that if you didn't have the statutory employer set up where they can go and, and make a claim under your work substation carrier, they could then sue you in tort. And a lawsuit will have a much higher disability rate or more, more money for the employee for lost time. It'll come with pain and suffering. It won't limit the employee to any particular doctor, and it won't have a fee schedule where the doctors have to comply, but the doctor's in charge basically whatever they want. So while it may not seem fair that your sub who doesn't have to have insurance their employee could go and proceed against you you are protected from being sued on a negligence.

Thomas L. Walker (17:26):
And that is a, a real benefit. The other thing to keep in mind also is that temporary help contracting firms and employee leasing companies are explicitly deemed statutory employers by statute in Georgia. So if you have a temp agency and they send, or you hire somebody from a temp agency, the temp agency is going to be responsible for the workers' comp coverage. But this has been an area that's been in flux in Georgia for a number of years. And there's still some, you know, question about whether or not they can go after the employee. If they, if there's no coverage with the temp agency, they might be able to go after you. So that's an <inaudible> that's still evolving. And my, my caution and the way that you protect yourself here would be to make sure that if you're hiring a subcontractor or intermediate contractor, that you have them produce their certificate of workers' compensation coverage.

Thomas L. Walker (18:23):
If you're hiring you know, if this is something you're concerned about, I mean, if you don't care, if you have to take care of your subs employees, then not, but that could affect your experience rating and how much, you know, claims and, and the money that's, that's paying. I mean, Mike, increase your rates. So you don't wanna do that. Then what I would do is when you have subs tell 'em, Hey, you've gotta be insured. We want you to produce your certificate of insurance. And the other thing is, and this is important too, is make sure you verify that that certificate of insurance is in fact valid. With PDFs always very easy for someone who had insurance at one time. Do you then got, you know, a loss in insurance or didn't renew it to have that certificate of insurance and go and scan it and they can go in and edit.

Thomas L. Walker (19:07):
It used to be that A PDF you couldn't edit, do editing to end. Now you can. So make sure that once you get that certificate, you follow up with and confirm with the insurance company or the agent that, yes, Epper has insurance and I have seen it where sub has provided a false certificate of insurance or it expired. You know, so you wanna keep on top of that. One thing is if you're a, if you're a property owner, you are not a statutory employer. So let's say you have a, a a a, a large factory or you know, some other facility and you hire a general or you know, to, to go and do work on that, to do an addition, do stuff like that. If something happened to an employee, then the employee can't really come after, after you as a property owner.

Thomas L. Walker (19:55):
You know, if you're a general who's a property owner, but you're, if the property owner's also acting as real in general though, then you might still be a statutory employer. So that's something to keep in mind. Some other things too is that the employee can't go directly against you. They have to go against the sub first, and if the sub doesn't have insurance, then they have to go after the the people who are being responsible for their coverage. So that's basically everything about the statutory employer. The next area of the, in the before portion is the Post-it panel physicians or the managed care organization panel. So in workers' compensation, you you provide medical care for the employee, and this is somewhere in other states as well, but I'll use Georgia for to be specific. And you, the way you provide medical care to your employee is you either let them pick one up to two doctors on the post panel, or they can go to the managed care organization and they have to go into those two mills initially on.

Thomas L. Walker (21:03):
There are other ways we won't get to the, some of the other things they can do on. But let's talk about the post panel. 'cause That's really more my favorite one. And the best news is wanna talk about, and that's the one that's more common, by the way. So what would you, you have a, a post panel. I'll show you what that looks like. Let's see here. Okay, so this is what the posted panel looks like, and it's a form you can get from the state board of workers' comp. It used to be bright pink, now it's just this plain white, but you would fill it out and you just have your, your insurer, the phone number, their address, insurers' email, and then we would have your space for your physicians. Now, this goes to nine, but you're only required to have six physicians that are reasonably accessible to the employee.

Thomas L. Walker (21:52):
You can't, you have to have a six employees, I'm sorry, six doctors, and you have to have at least one orthopedic surgeon. You could have more than one orthopedic surgeon, but you have to have at least the six. There has to be six physicians or physicians associations or professional corporations that are readily accessible to employee. You have to one orthopedic surgeon. You can't have any more than two industrial clinics. And this is something that, that doesn't get enough. Talk about also the, the, the this form also comes in Spanish. I wanna pull it up for you here. Yeah, so here's, here's this in Spanish. So you wanna have that posted as well, same information but just in Spanish. So you wanna, you wanna make sure when we hire employees that you explain the purpose of the post panel physicians, because here's the thing, if a person gets hurt, they can pick any doctor they want on the post panel.

Thomas L. Walker (22:56):
If they don't like that doctor, they can pick another doctor. And then they can't make any more changes unless you agree to it or the state border orders a change a physician. But if you don't explain the purpose of the Post-It panel physicians, you hire the person, you don't tell 'em, this is what happens. This is what you need to do. If you get hurt, then they can go to any doctor they want to. And if they don't like that doctor, they can pick any other doctor they wanna. So the, the i the most important thing in workers' compensation is controlling the medical. And I don't mean that in a, in a bad order nefarious way. But you wanna have an idea that you're, that you have good doctors that are going to get that, that are going to do right by that employee and try to get better.

Thomas L. Walker (23:43):
The problem is, there are a lot of doctors who are not upright citizens. You know, the one in the middle pain clinics are notorious. There have been pain clinic doctors who have written prescriptions for, you know, the Oxycontin when the person didn't need it. They were helping people get drugs and feed their drug addiction when they shouldn't have been. There are chiropractors that will try to treat body parts other in the spine and georgi a chiropractor can, as only can do the spine. The doctors that just aren't very good. But with getting the, the, the proposed panel, that's your opportunity to get good doctors who are going to help that employee. And I don't necessarily want to make you think, well, we wanna get conservative doctors, we wanna get company doctors. Because the thing about workers' compensation, you gotta remember, is that these are decided by administrative law judges.

Thomas L. Walker (24:34):
And these are, you know, decided by the state board workers' compensation, any issues regarding medical. And because cases are decided by, in Mr. Law judge who does nothing but workers' comp in a certain area, they get to know the reputations of the doctors very well, and they know the doctors that are conservative doctors. And so if you have a conservative doctor who says, well, this person and the, and the state board knows they're conservative, that they rarely ever put a person on disability, they rarely ever wanna do surgery. They rarely wanna do any real treatment for them. And they, and the employee has an IME from another doctor, the state board might say, yeah, you know what, we know their reputation of that company, doctor, we're not gonna give any credit. We go with the other doctor that this person brought. So I would say just try to find good doctors and don't worry so much about, you know, if they're concerned conservative or per employer does that can, you know, in, in, in a pinch in a litigation, it might not give you any benefit.

Thomas L. Walker (25:34):
The other thing to remember is that doctors opinions and tendencies change over time. There have been doctors that were known that we serve the doctors that were on different employer panels, that as they got older or changed over the years, they started to become very pro employee. So if you have a doctor who has a conservative reputation and they give a rude, bad opinion against you, the state board, they're gonna you that you're never gonna get out of that, they're gonna latch on and say, well, well, if this conservative doctor, if he's saying this, well, it's gotta be right. You can get all the irons you want, you can try to, to explore as much as you want, but a conservative doctor who starts to change their, their tendency, it'll just be, you know, horrible for you if you have a contested case. So, but the post panel try to get good doctors and don't worry so much about getting doctors that you think are gonna be favorable.

Thomas L. Walker (26:30):
If you're in a area out of the state of Georgia, south Georgia is in particular, it's hard to find doctors to put on panels, find that are accessible. You might be able to find the doctors, but they have like long lists of patients, they might not be able to get to somebody, you know, quickly. You gotta remember, the doctors have to be readily accessible. So if you have a doctor in your panel that's always turning down your claimants, then they're gonna then pull, can say you have Ave Endowed panel. They can go to wherever they want to. I had one defense one claimant's attorney who would, you know, call up doctors and, and try to make appointments just to see, have the doctor say, well, no, we're not accepting appointments. Just so they can go and, and claim the panels invalid.

Thomas L. Walker (27:14):
So you wanna make sure that doctors are going to be seeing your patients. If you're in an area that'll, where you can't find the full six doctors the state board can grant an exception to four physicians, but the state board has to be the one granting that exception. Not you, you have to go and tell, petition the state board and say, look, we can't get six who will readily accessible? We'll see our doctor, or I see our patients, our, our claimants, our employees. Can we go to four? As you know, Mr, on both those panels, you can do more than the six, you can do the nine. It's up to you how many you want to do it. The other thing that you have to do is you must post the panel physicians in a prominent place in the business. If you don't post it, it's as if you don't have one.

Thomas L. Walker (27:58):
A lot of employers will do it at the time clock. They'll do it in the break room where all the other postings are. I, I had some employers who had a tree service company and their employees where we went to the office, they typically would go to the job site and I would say, posted the job site. You know, make sure you post these in as many locations as you can. When we are on onboard an employee I would also recommend that you have them sign acknowledgement that you explain the purpose of the post panel, that they know they're supposed to go and pick their doctor from that panel, and they get one choice you know, to, so that way they can't come back later and say, well, I didn't know. They didn't tell me I should be able to go to this, this pain clinic because, you know, they didn't tell me that stuff.

Thomas L. Walker (28:41):
So, you know, make sure that in terms of your panels, the the two areas I would recommend you not now that are pain clinics and chiropractors. Chiropractors are limited what they can do. And pain clinics tend to see the injury as pain and not getting the person back to health. I mean, the pain used to not be considered an injury until Purdue Pharma decided to create oxycont and make that as a selling point that now we're gonna treat pain, we're gonna treat pain as an, as a disease. And that is why there was the the epidemic that we had with opiates. And so pain doctors, every employee when they start to get back, is gonna experience pain, but it may not be a bad pain. It may be a pain to that's just required work. So I would stay away from those.

Thomas L. Walker (29:37):
The second way we can satisfy your providing medical treatment is through the managed care organization. And I'm going to see if I have a panel for that. Yes, here we go. This is what the, the Managed Care organization panel looks like. The insurer name, address, phone number, and then it tells the workers' comp, managed care organization, service area, and all of that information. And of course, we also have one in Spanish as well. And these forms, again, you can get from the state board, they're downloadable from the state board and fillable. So you can do all that at your own. But again, make sure that you, you know, whatever way you do it, make sure you have these up and accessible. And again, I can't stress this enough. Make sure that your employees understand the function of the panel or managed care organization procedures and the employee's right to select a physician there from in case of injury, and are given appropriate assistance in contacting panel or managed care organization members when necessary.

Thomas L. Walker (30:49):
And again, the consequences that if you don't do this, the employee can go to any doctor they want to. And if they don't like that doctor, then go to any other doctor. They want to something else. Do not try to settle with the injured employee. Had an employer contact me and they asked a question about workers' comp and they said, yeah, they're, we wanna settle with this before they make a claim. And I told 'em, don't do that because the thing is in, in Georgia and likely in our states as well, is that every workers' compensation system has to be approved by the State Board of Workers' Compensation. If you don't, if you try to settle it, you try to have a person waive a workation rights, the state board's gonna disregard that, and the money you pay to them will be considered payments by employment in lieu of the temporary total disability benefits.

Thomas L. Walker (31:42):
And the reason why that's significant is if, if you have an injured worker, you set 'em up for medical appointment, they go get treatment, and then you, the adjuster later says, yeah, this doesn't smell right. We think this person got hurt off the job. We think this is a made up injury. We don't think this has anything to do with, with work, then we can still controvert. But once you've paid income benefits, you've bought the claim, and there are some ways you can get a around map, but typically when you pay income benefits, you are stuck with that claim. If you later wanna controvert it, you can't like I said, there are some ways around that, but, but that's the danger is you don't wanna get income benefits to a person that they can later say, well, you, you bought this claim. And the other thing is that it's not effective anyways.

Thomas L. Walker (32:23):
The settlements and, and workers' compensation have to have very specific language. They have to be sent to the state board for their approval. And the state board does disapprove settlements. They look at the amount of money, they look at the, that is statutory. They, you've met all requirements, and there are also additional requirements the state board has put and the rules that you have to comply with, with the language in a settlement. So it might be tempting, you might wanna try to do it to avoid having to make a claim, which you'll experience experience rating, but it, it won't, it may not end well for you. It may cost you more money in the end. So those are all the things you wanna think about before a person has made a claim. So what should you think about when a person has made a claim?

Thomas L. Walker (33:04):
So the first thing I will tell you and this goes Georgia or wherever you are, assist the employee with getting the medical care. You wanna make sure that employee, you know, knows about the panel. If they say, oh, I got her on the job. Say, oh, well, here's our panel, who do we want to go to from there? And they might ask you, well, who do you think we should go to? You know, and that might be all right, you know, that they, if they don't know you might not have employees who are necessarily sophisticated or understand or they, they certainly won't have time to investigate those doctors on their own. You might say, well, you know, why don't we go with this one? This is what this person's like, you know, try to know your panel and, you know, tell, you know, give the employee, you know, tell 'em something about this doctors.

Thomas L. Walker (33:47):
And so they say, well, who should we go to? Well, the Zoom can go to, you know, tell, try to give 'em options. Now, in some cases that may not be practical. You might have an emergency situation where an employee has to be taken to an er, and then, you know, they might have emergency surgery. I had a number of cases where again, a representative for a tree company and employees were literally falling from the trees and getting severely injured, very, very serious. Back injuries, neck injuries. I don't mean to make light of that but they were getting very, very seriously injured and injuries that were going to last in a lifetime. And these were people who had to be taken, rushed to emergency rooms, had to have emergency surgery when they got in there, and they, you know, eventually were being treated by the doctors who initially cared for them.

Thomas L. Walker (34:36):
Now, you probably could go back and restrict 'em to go on the panel but if they're getting good care, that would be more important to me than forcing them onto a, a panel. And you only have one orthopedic surgeon, and the P surgeon may not want to do the follow-up care. So from practice standpoint, you, you may be stuck with, with what happened in an emergency situation, but in those cases where you have was not emergency, where it can be taken care of, you know, make sure you assist your employee to make sure they get to the right doctor. The other thing I would tell you is follow up with the employee. You know, you know, call 'em in a couple days, you know, how are you doing? Is there anything we can help you with? Do you have any questions?

Thomas L. Walker (35:18):
You know, and, and, and do it more, you know, can, you know, stay involved in their life until, unless they have an attorney develop. And a lot of times there's people go out and find attorneys when there's a misunderstanding. When they feel like they're not cared for, like the people that they're just be disregarded that the employee doesn't care about them, that's when they say, you know what? I'm gonna gonna go find myself an attorney. So if you wanna avoid litigation, if you wanna have better outcome and relationship with your employee, follow up, see how they're doing you know, or have their supervisor follow up or you know, someone that they, they know really well, but make sure you stay involved in their life until they tell you, don't call me or they, I've got an attorney, then at that point, you know, the, you're, you're gonna have to take a different path.

Thomas L. Walker (35:59):
But until I get that point, try to, you know, be active in what's going on with them. This is extremely important. After an accident, do an investigation. Look for any video. A lot of employers will have, you know, video where employees come and go. They'll have video on the warehouse floor or on the production floor. Go back and, and look at that video and find out what you can see on there. You know, if you find where you can see where the person had the accent, then, you know, court preserve that and use it later on the study from, or maybe you might wanna use it to see if there are parts of the body that they're adding on that weren't involved. But the other thing that's important, just as important, maybe more important is if you have video, there's video that doesn't show anything.

Thomas L. Walker (36:46):
You know, maybe it doesn't show the employee walking through an area doesn't show the employee getting hurt. Prove it, sir, all video from the day of the accident. Because if you don't, here's what's going to happen. The claimant's attorney will file a motion for an order regarding spoilation. If you, you might have video from coming and going, and it doesn't show the employee coming and going. The employee's gonna say, oh, well, I went through that exit and I I was limping, and if you have that video, it show me limping. If you haven't preserved the video, then they can go get an order of exfoliation where the judge will presume that if you did produce the video, it'd be bad for you. So make sure that you preserve all video regardless of whether or not you, you think is helpful, if on the day of the accident because that way they can't, you then take away their argument about spoliation.

Thomas L. Walker (37:38):
Say, Hey, this video shows nothing. So what are you saying is not correct? Other things, go talk to the coworkers. Go to, you know, everyone who would've been around. I mean, ideally, if you can ask the employee to, you know, who would've seen it, you know, that's the the best thing. But if, if you can't to at least go back and, and try and figure out who would've been in the employee's work area and talk to them, and, you know, once you've talked to 'em, ghetto written statement from them, write down what they're saying. Take very detailed notes. I I've seen where employers have the employee write a statement out. That's okay. You have to read the handwriting, and they're usually not gonna put a lot in there, but try to take detailed notes, type it up, and make it as detailed as possible.

Thomas L. Walker (38:18):
Have the the employee read it, the coworkers and if there are things that need to be changed and change 'em until they get it to the point where they, that they think is accurate, and then they sign it and date it, and you hold onto that, if you can get a statement front the employee, you know, so much, the better. You know, the same way you wanna have, you know, have you type it up, have them agree to it and do that. At the very least, one thing is that people's memories are always better, closer to an instant than they are months down the road. And employees, you know, they have their own lives that things are important, things that they forget. If you don't, you know, get it written down, committed down, then later on if you do get into litigation, they might, you know, not be as helpful.

Thomas L. Walker (38:59):
They might say, well, I don't really remember, you know, yeah, maybe I said that, but I don't remember that now. You know, becau But if you have something that's written that they signed, you know, the data that you can hand to 'em and they can use that to refresh your recollection. So if you have a, a witness who's up in the stands says, well, I don't really remember, and says, oh, well, Mr. So-And-So, let me hand you your statement that you signed and dated here. You know, would you please read that now? Now when you give that back to me now having refreshed your recollection, what do you remember? Oh, well, yeah, I guess that is what happened. So, you know, getting a written statement, Simon, dated is important. You also wanna take pictures and video when an eviction really is worth a thousand words, and it can explain what's going on.

Thomas L. Walker (39:40):
I had a case, a defendant a long time ago was involving a small newspaper in outside of Augusta. Person said they slipped and fell on water that's being thrown from the printing press. Well, my client took video of the printing press running, there's no water coming off of it, and we were able to show that to the judge, and the judge said, well, yeah, there's no water coming off of this. So, you know, the, it couldn't have been from that and that we won that case. So pictures and video will help explain what's going on to a judge, and it'll also help your adjuster and the attorney that gets assigned understand what's going on. After your employee has reported an injury is vital in Georgia that she, and I'm gonna share an anothering with you that she filled out.

Thomas L. Walker (40:27):
And the first report of injury, the WC one this has had a lot of, you wouldn't have the board claim number, but you can fill out the employee information, the identifying information, employer injury and illness, or at least what they reported, you know, what the, the time that they reported it, you know, the treating physician, all this good information here. You take this form WC one, and you submit it to the insurance adjuster, and the insurance adjuster will then complete it. They might, you know, put pick up you know, part B and, and commence benefits, or if they think that this wasn't work related or there's some, anything going on that can, you know, conver it right then and there. If they, there's no lost time, but they think it should be medical order, they can check that box too.

Thomas L. Walker (41:12):
And then once they have received the WC one from you, they will then file the State Board of Workers' Compensation. If you don't shouldn, if you don't file WC one, that is something that you can get a civil penalty for not doing. And there's no reason not to do it. And other thing is, the better the WC one, the it's a starting place for the defense attorney, and so it'll help your attorney as well. It's also in Spanish. I'm not really sure why they have in Spanish, but they, they do, I guess this is, so it can go to the employee, but this is a form that goes to the adjuster. But if you have a Spanish speaking, speaking employee, you may wanna do it in duplicate. If you, you have an employee who makes less than the comp rate, then you need to fill out the WC six.

Thomas L. Walker (42:04):
The next comp rate in Georgia is 800 per week for up to 400 weeks. If you are not, if the TTD benefit, the temporary total disability benefit, the weekly income benefit doesn't reach 800, then you will need to fill out that wc what's called WC six. So I'll show you that. And that just shows what the person made the 13 weeks before the day of the accident, because you, you determine average weekly wage based on the 13 weeks before the date of the accident. I might have worked there for 52 weeks or longer. But you look at the, the 13 weeks immediately before the accident, the <inaudible> is by taking two thirds of the average weekly wage up to $800. The reason why it's two thirds is because you don't pay taxes on workers' compensation benefits. We are running a little bit short on time, but I can wrap up my last two areas or I cooperate with the adjuster.

Thomas L. Walker (42:57):
If the adjuster asks for payroll information or records, make sure that you get them to them because they'll make their job easier and they'll understand what to do. Also, sometimes, you know, explain to them what the job was. 'cause A lot of times adjusters don't know the job like you do, you know the job better than anyone else. And so you can help, help the adjuster understand, help the adjuster help you. If you do the case that's thrown into litigation, then cooperate with your defense attorney. They might have to respond to document requests, request for interrogatories, request for admissions. That will typically be sent to you by the attorney or the paralegal or secretary. You know, make sure you, you fill 'em out in timely and quickly follow the instructions that the attorneys have said because they might wanna get them back before they send the formal versions.

Thomas L. Walker (43:46):
So again, help your attorney help you. If you have pictures, if you have video, if you have demonstrations of how to do the job, you know, go and, and do that for the attorney a lot of times. What might seem perfectly understandable to you isn't to anybody else, but you and the attorney needs your help. You know, we sit behind desks, we write papers, we do a lot of stuff that, you know, if you tell us how you, how a job is done, that is incredibly helpful. If you have to testify at the de at a deposition, work with your attorney on preparing beforehand if you have to testify or have to have employees testify at a hearing, you know, work with the attorney. The why last area, I'm gonna try and wrap this up real quick because I know we're going a little bit over time.

Thomas L. Walker (44:32):
This is the after part. Typically a workers' compensation case will end you there with the employee return back to work. Those are usually the minor ones where it's a medical only or there's a very short period of disability where you have a much longer time away from job, much more serious injury. Those are ones that, that, you know, are that, you know, were special one with permanent disability, permanent limitations. Those are ones that are typically going to be settled. When the insurance attorney will settle your case, they'll do all the pa proper paperwork for the state workers' compensation, but they're also generally due a voluntary resignation and they will do a general release. Unfortunately, as I said, workers' comp attorneys, defense attorneys don't typically know anything other than workers' comp defense, and they're not very well versed in employment law.

Thomas L. Walker (45:22):
I've seen where a general release will have an employee waiving their rights under the Fair Labor Standards Act, the Family Medical Leave Act, the employment Discrimination Employment Act, the Americans Disability Act, and under, sometimes even under unemployment. The problem with that is that under the Fair Labor Standards Act, every settlement or compromise has to be approved by the department of Labor or by a court. So if you, you can't have personal waiver rights under the Fair Labor Standard Act, that is meaningless in a agreement. The a DA was very specific statutory language that you have to comply with to have personal rate waive those rights. And unemployment cannot, you cannot be waived, that cannot be given up those rights. So you could have this thing that you think of protection where the employee, you know, they, they've been out for work when you know, you settle it.

Thomas L. Walker (46:16):
And then when they're ready, willing and able to work, they might try to go to new employer and may and may not work enough weeks there to have that new employer qualify for unemployment and then it comes back on you. Or they could maybe not find work after they've been released to return to work. They've, you know, no longer employed because of Solomon, and then they could go and do an L deployment claim. So that concludes what I had prepared for today. If you have any questions, you wanna talk to me, please, you know, give me a call. Our general number is 4 0 4 3 6 5 0 9 0 0. You can also find my w all my email addresses, t tw@wimlaw.com. I'll be happy to, you know, answer your questions if you, something comes up later on. I hope you've enjoyed it. I hope you've learned something. I hope you found information that was helpful to you here today. Hope you have a great weekend. Bye.