Category Archives: Is this a work-related injury?

If I get hurt on the job, return to work for over 2 years, and then have to quit due to pain, can I get workers’ comp benefits?

This question comes up from time to time, and as a Atlanta workers’ comp attorney I have the privilege of answering it. This question often comes from men who have physically demanding jobs they love doing and want to continue doing.  In a case decided in March 2015 called ABF Freight Systems Inc. v. Presley, a man hurt his right knee, got surgery, returned to work for a couple of years, and then had to come back out for more medical treatment to his injured knee.

In this case, the injured man could have received workers’ compensation disability benefits while he was out of work for the knee only if he had what’s called a “fictional new accident” as opposed to a “change in condition.”  Unfortunately, for him, the judge (and, later on, the Georgia Court of Appeals) found he did not have a fictional new accident, meaning he could get no TTD (temporary total disability) benefits.

In order to determine if you’ve had a fictional new accident after returning to work following an injury, your injury must have gotten worse due to the physical activity of the job (or because of an aggravation that happened at work).  If it’s a gradual worsening due to the “wear and tear” of life and work, it’s not going to qualify, and it will instead be a change in condition.  This determination is very fact-based, and often times a deciding factor in the decision will be whether new circumstances were present when you returned to your job post-injury.

The reason all this mattes is because there’s a 2-year statute of limitations on getting TTD benfits after you’ve received them for an injury in the past.  In the case cited above, Mr. Presley lost his case for TTD benefits, because more than 2 years had passed, and the court did not believe he’d had an aggravation or fictional new injury.

Was an EMT’s injury idiopathic when she stood up from her desk?

The Georgia Court of Appeals evaluated a case this summer titled Chambers v. Monroe County Board of Commissioners that involved an injury the Employer argued was “idiopathic” (i.e., that it could have happened anywhere, so it shouldn’t be covered by workers’ compensation insurance).  After the claimant won at the initial hearing, she was overturned at the next two appellate levels.  The GA Court of Appeals agreed with the appellate decision of the State Board of Workers’ Compensation–that the injury was idiopathic.

Ms. Chambers (an EMT and firefighter) hurt her knee while getting up from her seat behind a desk that her supervisor needed to use; he asked her to get up, and when she did, her knee gave a “pop” sound and was injured.  Before she got up, she was filling out paperwork and watching television at the fire station after returning from a call.  Her knee required a surgery and will eventually need a replacement surgery.

The Court of Appeals made its opinion fairly clear in the decision (linked above) that when evaluating cases mainly determined by the facts, as is an idiopathic injury case, it will defer to the findings of the State Board, which, in addition to including the Administrative Law Judge, includes the 3-judge “full Board” appellate division, even though these judges will not have observed the claimant’s and witnesses’ testimony in person, but will have access to the transcript and records admitted into evidence instead.  Personally, I’d like to see more deference given to the hearing judge’s opinion than the appellate division’s, but I don’t get to make such rules.

In the future, if you’re going to hurt your knee while getting up from your desk at work, make sure you strike your knee on the desk.  Then, it’ll be work-related under the “positional risk doctrine,” at least!

What shoud I do if sustain an injury at my job in Georgia?

If you have never experienced an on-the-job injury before, you should be aware of what to do before an incident, so that you are able to protect your rights should something occur. I’ve put together a short (but important!) list of things Georgia employees should know:

Take Notes
You should do this quickly, while events are still fresh in your mind. Jot down significant details like the time, the surroundings, the names of any witnesses, any details that led to your accident, and how the accident occurred. If company safety or equipment violations are at play, be sure to note those as well. Alternately –and since we live in a tech-friendly world– you could make a brief video or voice recording of your recollections about the incident (if you choose to do this, however, don’t surrender this to anyone; it should only exist as a point of reference for yourself).

Report It
If your injury is not life-threatening, you need to report it to your immediate supervisor or union representative immediately. There are forms they are required to file, and they will need to take a report about what happened to cause your injury.

If your injuries are life-threatening, go to the closest emergency room right away. When you are doing hospital paperwork, be sure to tell the staff that your injury occurred in the workplace. They have special procedures in place for workers’ compensation injuries.

Seek Treatment
When dealing with a workplace injury, you need to be seen in an E.R. or by a company-approved workers’ comp doctor, depending on the severity of your injury and the immediacy of your need for care.

If your injury is severe, you should report to an emergency room, and notify your supervisor as soon afterward as you are able to do so. If your injury is not severe, your employer will refer you to a workers’ compensation doctor. You must see the provider you are referred to.

Get Documentation
Get a copy of all documents you sign and forms you fill out in relation to your injury. Keep them together in a safe place in case you need them for reference later on. Keep records on-hand of every appointment and prescription.

Follow Instructions
This is one instance where you do not want to be a rebel. You need to follow the doctor’s instructions to the letter. If you are told to stay out of work, stay out of work. If you are told to report to work, report to work. Do not miss scheduled appointments with doctors or therapists. Take any medications prescribed to you according to physician instructions. Do your physical therapy faithfully, and limit activities as directed. This can all be summed up by the phrase– “Be a good patient!”

Say No
If your workers’ compensation doctor requires you to stay out of work or orders that you can only perform light duty tasks on the job, it is against the law for an employer to threaten your employment or potential disability benefits. They cannot legally use your workplace injury to discriminate against you. Refuse anything that goes against doctor’s orders. You have the law on your side, no matter what your employer says.

Get Legal Counsel
Every injured Georgia worker can benefit from a consultation with an experienced workers’ compensation attorney. Atlanta workers’ comp lawyers from Moebes Law, LLC are well-versed in Georgia law and can assist you in determining your best course of action with regard to your disability benefits. They work closely with a team of respected Georgia medical professionals to ensure the highest quality of care for their workers’ compensation clients.

While I hope that you never have to put these tips to use, please bookmark them and review them periodically so that you are prepared.

My mom was shot by her husband at work. Workers’ comp or not?

Julie Tassler was murdered on Christmas Eve in 2008 while on a smoke break from her job at an HSBC processing center in Sioux Falls, South Dakota. Her husband, after being served divorce papers the night before, found her in her car and shot her before turning the gun on himself.

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Now the estate of Julie Tassler is asking HSBC to pay worker’s compensation benefits to their two surviving children. Julie’s father has sued the British-owned bank and AIG, the insurance company that underwrites HSBC’s worker’s compensation costs, on her estate’s behalf.

Initially, the district court and the South Dakota Department of Labor and Regulation ruled against the family. The decision was appealed and the case is before the South Dakota Supreme Court.

At issue is, of course, whether there is any justification for the death to be considered a worker’s compensation issue. The lawyers for the estate of Julie Tassler claim that she would never have been shot had she not been at work.

That argument is based on two very important assumptions. First, the estate says that Julie was never away from her children other than when she went to work. Second, they say that her husband, Steven Tassler, would never have shot her in front of their kids. So, the only opportunity Steven had to commit the murder was when she was at work. According to the lawyers for the estate, the murder “couldn’t have happened anywhere else.”

Should the Supreme Court grant the appeal, the Tassler’s children, now 9 and 11 years old, would be entitled to two-thirds of Julie’s average weekly wage until they were 18, or 22 if they choose to go to college. They would also be able to collect funeral expenses for their mother.

The case is being watched carefully due to the precedent it would set with regard to holding an employer accountable for domestic violence that spilled over into the workplace.

Attorneys for the estate argue that Steven Tassler would not have had the opportunity “but for the constraints of [Julie’s] employment,” which places the employers in the path of responsibility. HSBC’s lawyers point out the slippery slope that employers would be standing on should the appeal be granted. “Every domestic assault would be work related and would be compensable because the only connection you have to show is that the employee had to be at work,” says HSBC attorney Eric DeNure.

An administrative law judge ruled that HSBC did not “contribute to the assault,” but the judge left the door open for appeal by saying the South Dakota Supreme Court had not directly addressed the idea of “whether injuries sustained as the result of a domestic assault arise out of the employment.” In other words, the Supreme Court must decide if an employer can be held even partially responsible for domestic violence that relates in any way to an employee.

There are some very meaningful questions here that are yet to be answered. There is no timetable for the Supreme Court’s ruling as yet.

Were this a Georgia workers’ compensation case, my assumption would be that the courts would find that this death is NOT work-related: i.e., not covered under the Georgia Workers’ Compensation Act. The insurer’s argument would be that the “dispute” causing the lady’s death was not related to her employment, but was instead related to her marriage to a vengeful, violent man (and that it happened during an unplanned smoke break).

Does my sprain or strain entitle me to workers’ compensation benefits?

Last year I started a series of posts covering the types of injuries we handle at Moebes Law.  Today we’ll discuss strains and sprains which, while similar in nature, are two very different conditions. They can occur independently of one another or concurrently and are a valid workplace complaint.

Knee injurysprain is an injury involving a ligament. Ligaments are the tough, rubbery tissue that connects bones.  Sprain injuries, then, affect joints. The two most common types of sprains involve wrists and and ankles.

 

 

There are three classifications for sprain severity. They include:

  • Grade I Sprain (Mild): This involves the overstretching or slight tearing of ligaments and doesn’t result in joint instability. There is little evidence of injury and the injured person is not functionally affected.
  • Grade II Sprain (Moderate): This involves a partial ligament tear and produces bruising, some pain and some swelling.  Some loss of function is experienced, and putting weight or stress on the affected joint is difficult.
  • Grade III Sprain (Severe): This involves a complete tear or rupture of the affected ligament(s). There is typically severe pain, bruising, and swelling. Often immobilization and surgery are called for. Also common is the risk of future sprains in the affected area.

When experiencing a sprain, you may feel a pop or tear and have a temporary loss of function in that joint.

strain is a twist, pull or tear to a muscle, the tissue that facilitates bodily movement, or a tendon, the denser tissue that anchors muscles to various points of the human skeleton.  The two most common areas of strain are back and hamstring muscles.

Unlike with the sprain, strains have two types. Chronic strains are a repetition injury; they occur when a muscle or tendon is overused and/or insufficiently rested between uses. Acute strains occur when there is a direct blow to the body, the tissue is overstretched, or is contracted an excessive amount.

Like the sprain, the strain has three classifications:

  • Grade I Strain (Mild): Few muscle fibers are damaged. Healing occurs within two to three weeks.
  • Grade II Strain (Moderate): There is more extensive damage to muscle fibers, but the muscle is not ruptured completely. Healing takes three to six weeks.
  • Grade III Strain (Severe): This involves a complete rupture of a muscle. Most typically surgery is called for and healing can take upwards of three months.

Because both sprains and strains can be tricky injuries, so it’s best to err on the side of caution and be evaluated thoroughly if either of them occurs to you in the workplace. Neglecting a severe sprain or strain could cause long-term complications that you can’t foresee. Strains and sprains are quite common in the workplace and as Atlanta injury lawyers  we see them with regularity in Georgia workers compensation cases. If you are unsure if your workplace injury calls for treatment by a physician or entitles you to benefits, please contact our offices for consultation. Better safe than sorry!

Can I receive workers’ comp benefits in Georgia for a mental injury?

In the ongoing series where I discuss injuries that may or may not be covered by workers’ compensation benefits, so far I’ve discussed burn injuries and slip and fall injuries. Among the injuries listed on our firm’s website are psychiatric and psychological injuries, and I’ll address those today.

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Most people equate on the job injuries with the physical, but psychological and/or psychiatric injuries occur as well. While it’s almost always impossible to see them, their effects a worker are every bit as valid and real. Under workers’ compensation laws, In order to be eligible for compensation, a worker must sustain an injury that both arises out of and occurs in the course of employment.

There are myriad psychological and psychiatric disorders that could be workplace-related. PTSD (post-traumatic stress disorder), anxiety, and depression are just a few of the most common. With regard to workers’ comp, there are three traditional categories of mental disability cases: physical-mental, mental-physical, and mental-mental:

Physical-mental refers to a case that involves a physical injury that leads to a psychological problem. For instance, a worker gets injured on the job. As months or weeks progress, he is not showing any great improvement and starts to get discouraged. Discouragement turns to severe, life-altering depression. The physical injury, then, gave rise to a mental one.

Mental-physical deals with cases where an emotional stimulus causes physical reaction and disability. Let’s say an employee has a job in a facility that requires him to repair elevators. In the course of working on an elevator one day, a cable snaps and sends the car hurtling downward, and the employee has a near-death experience but comes out physically unharmed. He finds himself unable to go near an elevator ever again without having a severe panic attack, which of course hampers him from doing his job as an elevator repairman.  In this case, a mental injury caused a physical one.  Georgia courts are unlikely to recognize this as a workers’ comp injury, as the physical injury did not precipitate the mental injury.

Mental-mental cases are those in which mental stimulus (most often repetitive) causes a psychological injury. These are also called ‘pure stress’ claims. This kind of injury may arise from bullying at work, for instance. Mental-mental cases are typically the least recognized and compensated, although courts in some states are coming around and recognizing them as valid claims. Currently, Georgia does not allow workers’ compensation benefits for this type of psychological injury, either.

Mental injuries are debilitating, just as physical ones are; they require time for healing and treatment by capable healthcare professionals. Both of these can be provided by workers’ compensation benefits. Whether your mental injury arose from an experience (such as robbery or assault) or a long-term physical debilitation stemming from a job injury, you will probably need the help of an experienced Georgia attorney when seeking compensation.

If you are a Georgia worker suffering from a psychological or psychiatric injury, contact our Atlanta offices for compassionate counsel who will advise you on your type of case and assist you in getting the workers’ compensation benefits you are entitled to under the law.

I slipped and fell at my Georgia job. Am I eligible for workers’ compensation benefits?

Last month I began writing about some of the various types of workers’ compensation injuries that can occur. Today I’ll discuss slip, trip and fall injuries.

The time to address slip, trip, and fall injuries is prior to an incident occurring. Employers have a responsibility to their workers to ensure that the workplace is not conducive to an accident. This means that they should have systems and procedures in place that emphasize safety and responsible behavior on the job. It also means that the work area should be free of of any obvious hazards to employees. All too often slips, trips, and falls at work are caused by an employer’s lack of vigilance in attending to these matters.

In the U.S., slip and fall injuries:

  • make up 15% of all workers’ compensation claims
  • account for more than 15% of all accidental fatalities
  • average $22,000 in workers’ compensation benefits per claim
  • are accountable for 65% of lost work days
  • are the third highest cause of workplace injuries
  • result in 31 or more days away from work in 22% of cases
  • are the single highest cause of emergency room visits
  • cost American businesses billions annually

They are also the most preventable accidents to occur in the workplace. Unfortunately, in their haste to cut costs, some employers don’t adequately address things that could keep employees safer.  For instance, implementing a slip resistant shoe program could cut slip and fall accidents by 50% in many places of employment. Regular safety inspections and area maintenance can catch hazards before an employee is affected by them.

Slipping, tripping, and falling could cause an injury as minor as a sprained ankle or one as serious as traumatic injury or death. All too often an employer will attempt to make a case that, though the employee was on the job, it was through some error of their own that they were injured. They may want to put you back on your feet far too soon, putting you at risk of serious re-injury if you’ve not had the proper time to heal.

The effects of some slip, trip, and fall injuries may be far-reaching and difficult to quantify early  on. It’s important for injured workers to have proper guidance by sharp physicians and an experienced workers’ compensation attorney. As Atlanta workers’ compensation attorneys,  we have extensive working relationships with some of the best workers’ comp doctors in Georgia and want to make sure our clients get the benefit of the best possible attention, care, and financial help to which they’re entitled.

If you don’t feel like you’re getting a fair shake where your slip and fall injury is concerned, then call us at 404-354-5432. We want to help you.

I believe bullying at work led to my injury. Am I entitled to Georgia workers’ comp benefits?

Back in February, the state of Hawaii introduced a bill that, had it passed, would have made workplace bullying an occupational safety violation. Ultimately that meant that Senate Bill 2487 proposed to make victims of workplace bullying and harassment eligible for workers’ compensation.

We’re in a time when jobs are hard to come by and where workers are asked (and expected, really) to take on more workplace responsibilities for less money. The economics of survival are more difficult than ever before to navigate, and employers have more leverage over their employees -and they fully realize it. There is stiff competition between co-workers to retain jobs in light of frequent layoffs, business closures, and high unemployment rates. In light of all these circumstances, it’s not hard to imagine that the workplace could become more stressful overall and employees could feel more pressure than is fair.

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According to a Zogby International survey conducted in 2007, 49% of U.S. workers have been bullied at the office or repeatedly mistreated in a way that affects their health. Around 45% of those bullied at work suffer stress-related health problems, including heart problems, anxiety, suppressed immune systems, and even PTSD. Being bullied can affect an employee’s workplace environment to the extent that accidents occur on the job.

How do you know if you are (or have been) bullied, though? According to a Forbes article, there are ten solid signs:

  1. Work means misery:
    You are anxious or nauseous frequently right before the start of your workweek.
  2. Constant criticism:
    You have to live up to a different standard than other employees and/or there is an endless flow of criticism from your boss or co-worker despite your solid performance.
  3. Yelling:
    If you’re frequently screamed at, insulted, or humiliated (especially in front of others), you are being bullied.
  4. A running tab of your errors:
    Is your boss or co-worker keeping your mistakes at the forefront of your workplace relationship with them? Do you hear about it often with no context? Are you falsely accused of errors you didn’t commit?
  5. Gossip and lies:
    This old playground tactic is used in some workplaces, too. It was a sly act of bullying back then, and it’s one now.
  6. You are excluded:
    If you’re being singled out and isolated either socially or physically, you are likely being bullied, according to experts. This could be anything from being repeatedly left out of lunches and meetings to a workspace separate from others entirely.
  7. You need more mental health days than average:
    If you’re using all your personal or sick time just to get away from the pressure of your workplace, it could be because you’re bullied while there. Other signs are feeling lifeless on your days off or a constant obsessing about work, even when you’re not there.
  8. Sabotage:
    A coworker or boss tries to tank your performance in a myriad of ways.
  9. Impossible schedule:
    Constant changes on the fly, meetings scheduled consistently in a way that interferes with your personal life and pursuits, not allowing mandated breaks and vacations earned are all means of bullying.
  10. Theft of your work:
    Your boss or a co-worker co-opts the credit on all your hard work.

While there are no current laws on the books that deal with workplace bullying specifically, there are cases where mental health and stress-related work injuries are actionable under current workers’ compensation law.  In Georgia, such injuries must be preceded by physical injury (most states are this way).  If you are unsure as to whether or not your mental health or stress injuries entitle you to workers’ comp benefits, then call Moebes Law and discuss your case with a knowledgeable Georgia workers’ compensation attorney.

I burned myself at work. Can I get workers’ comp benefits in Georgia?

Sometimes people who need the services of an Atlanta workers’ compensation lawyer don’t have a firm idea about what constitutes an actionable injury, or what injuries are covered. I’d like to begin addressing that. To help educate the people of our community who are seeking information, from time to time I’m going to discuss one of the injuries listed on our firm’s website.

Today I’d like to talk about work-related burn injuries.  Maybe “like to talk” is too strong a phrase, but I’ll write about it regardless.

One thing we all know is that no matter how minor they are or may seem, burns are a very painful sort of injury, and many times take their sweet time to heal.

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Burns have three different classifications to rate their severity: First-degree, second-degree, and third-degree. These are also known as superficial, partial thickness, and full thickness burns, respectively. A first-degree or superficial burn is painful, but only involves the outer layer of the skin, which is called the epidermis. The site of injury appears red, dry, and painful. Long-term tissue damage is rare with first-degree burns.

A second-degree or partial thickness burn will have blistering and can get into the dense bottom portion of the dermis, which is immediately below the epidermis. Second-degree burns can result in scarring and necessitate skin grafts in some cases.

Third-degree or full thickness burns will cause destruction of the epidermis and damage down to the hypodermis, into the bones, muscles, or tendons. Nerve endings are destroyed and the burn site appears white or charred. Grafts and repeated surgeries are likely necessary and performed in stages over time.

Workers’ compensation burn injuries can be tricky, because a lot of different variables come into play. How and under what circumstances was the employee burned? What was he or she burned with? Were adequate workplace safety precautions and practices set forth and observed by the employer? These things will be examined, and a good workers’ compensation attorney will know the questions to ask in seeking benefits for a burn victim.

Burn cases require a long view, as second- and third-degree burns will involve varying levels of ongoing care. Since all burn injuries and the people recovering for them are different, it may be difficult to determine what financial burdens may face a burn victim as a result of continuing treatment and surgeries. There are quality of life issues to be addressed (for instance, special garments), too. These add up to additional burden and expense on an injured worker.

Most severe burn injuries won’t be addressed overnight, and workers have the right to be compensated for injuries on the job in a way that makes sure needs that are encountered down the road are met. If you were burned in the workplace and would like to discuss your Georgia workers’ compensation case to make sure you are receiving every benefit you’re entitled to, give our offices a call. We are a firm well-versed in workers’ compensation, and we are sympathetic to your needs.

If a restaurant employee chokes on the restaurant’s food, is that a workers’ comp claim?

If I said to you, “Off the top of your head, name three workers’ comp-related things that could happen to a waiter in a restaurant,” what might come to mind? A slip and fall, a burn, trauma from a robbery, even. Out of all the negative things that could happen to a restaurant worker in the course of their employment, would you imagine that choking would be a potential hazard that an employee might find himself seeking compensation over?

Well, meet Mr. Michael Bernard. He lives in Virginia and is a host and waiter for the restaurant chain TGI Friday’s. Bernard filed for workers’ compensation benefits in 2010 after he suffered  through the wacky happenstance of choking on a danger-laced quesadilla. Bernard’s claim was that he was injured by the “strenuous process of dislodging” his “partially chewed food” after he “attempted to swallow a piece of quesadilla that was too big for his esophagus”, according to Virginia Court of Appeals records.

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Court records also show that Bernard suffered a perforated esophagus and collapsed lung that required emergency surgery after the choking incident in question.

According to Bernard, TGI Friday’s employees often sample the restaurant’s food in the course of their employment in order to recommend dishes to customers.

The Virginia Workers’ Compensation Commission found that Michael Bernard’s injury did indeed occur in the course of employment, but denied his claim for benefits, stating that there was nothing ‘unusual or abnormal’ about the quesadilla would cause injury. (It was not made with rocks, apparently, or spikes, or anything else that might make your basic everyday quesadilla more daunting and injurious.)

In a 2-1 decision this past week, The Virginia Court of Appeals upheld that ruling, saying that Bernard’s choking risk was not unique to his employment. They believed it was something that could have occurred anywhere and just so happened to do so in Bernard’s workplace.
“Swallowing partially chewed food was a risk Bernard faced equally on and off the job,” the majority opinion reads. “Nothing about the TGIF quesadilla or Bernard’s work environment increased that risk.”

Justice Robert P. Frank was not in agreement with this ruling. In his dissenting opinion, the Justice said that Bernard should receive workers’ compensation benefits because food tastings were part of his job so that he could recommend dishes to guests.

While unusual, this type of case is not unheard of. Back in 2007, a police officer in Delaware lost his bid for workers’ compensation benefits over a choking incident involving a hamburger. Jonathan Lewicki, while working as a road officer in 2002, stopped to eat a burger on a break during his patrol shift. He took one bite of the hamburger, a piece of meat got lodged in his throat, and Lewicki had to radio for help.

Another officer arrived, performed the Heimlich on him, which dislodged some of the meat in Lewicki’s throat. Lewicki was then taken to a hospital by ambulance and went into emergency surgery for removal of the remaining food. Later, there was a second surgery to correct Lewicki’s tight esophagus.

The Court in Delaware found against Lewicki, stating that he “…was not performing any specific job requirements at the time of the choking incident that caused him to eat other than normally.” For benefits to have been awarded, maybe he had to be chasing a suspect, or stopping a robbery mid-chew?

All kidding aside, if you have a workplace injury that you feel needs to be covered by your employer’s workers’ compensation insurance, give us a call. We’d love to help you sort through any red tape or resistance and seek satisfaction on your claim.