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Herbert Chestnut & Associates provides services in Georgia Workers Compensation and Workers Compensation under the US Defense Base Act. The Defense Base Act (DBA) covers employees of Defense contractors injured in Iraq, Afghanistan, and throughout the world.
Located in Marietta, Georgia we represent injured workers in Atlanta and all around the state of Georgia. We also have represented injured Iraq contractors under the Defense Base Act from as far away as Honolulu and New York. No matter where you live we can help you if you were injured working overseas for companies such as KBR, Halliburton, L-3, Titan, and Service Employers International. Our firm offers expertise in both of these Workers Compensation areas and Herbert Chestnut has been named Workers Compensation Attorney of the Year three times by the Consumer Business Review.
Please visit our website which offers Benefits Calculators, extensive Frequently Asked Questions (FAQs), and detailed information on the rules in Georgia Workers Compensation Claims from included types of injuries all the way through settlements or trial. Please also visit our frequently updated Defense Base Act Blog. It provides news, resources, and insight for the thousands of injured contractors who return home to this Workers Compensation Benefits system.
Mr. Chestnut began his higher education at Georgia Southern University, where he received his Bachelors degree in Political Science in 1979. Continuing his education at Mercer University School of Law, he was the Editor of the school newspaper, and served as Director of the Mercer Legal Center, a student organization which provided free assistance to Public Defenders in the Macon area and drafted legislation for the Georgia Legislature.
Mr. Chestnut began his legal career in his home town, Savannah, in 1982. “I handled cases involving real estate to domestic relations and everything in between. The first lawsuit I drafted was a class action claim against General Motors.” In the early 90’s Mr. Chestnut concentrated his efforts on workers’ compensation cases.
The growing scope of his practice in Savannah led to Mr. Chestnut’s admission to the bar of the Supreme Court of the United States in 1987. In 1995 Mr. Chestnut moved his successful practice to Marietta, Georgia, where he continues to serve those who can benefit from his depth of experience and dedication to those seeking help with job-related injuries.
In addition to handling Georgia workers' compensation claims, Mr. Chestnut is one of the few attorneys in the nation who have handled virtually all types of workers' compensation claims. He has experience with claims under the Longshore and Harbor Workers' Compensation Act, the Federal Employees' Compensation Act, and actions for Maintenance and Cure (maritime claims). This broad base of experience, gained through 25 years representing injured workers, has given Mr. Chestnut both the knowledge and the compassion necessary to properly represent one who has been seriously injured on the job, whether the injury occurred around the corner or around the world. Mr. Chestnut’s experience and abilities are reflected in his award of the highest-level “AV” rating from Martindale-Hubbel, the law directory trusted by lawyers and clients for over a century. The Consumer Business Review has honored Mr. Chestnut as their Workers’ Compensation Attorney of the Year on three occasions. Although he is an Independent, the National Republican Congressional Committee has honored Mr. Chestnut with a National Leadership Award and appointed him to its Business Advisory Council.
The highest compliment to Mr. Chestnut is a repeat client. "When a client either comes back to me with another matter, or refers a family member or friend to me, I am honored." he notes. "While results are very important, it is equally important that I treat my clients with respect and compassion, as I would want to be treated myself. I never forget that it is your case, and my job is to listen and understand your priorities and goals. I want to be the last attorney you hire, and the person you trust to handle any legal concerns of your family and friends."
Mr. Walter began his higher education at The University of Alabama, where he received his Bachelor of Arts in History and English in 2003. He continued on to University of Georgia School of Law, where he graduated Cum Laude in 2006. Mr. Walter was Articles Editor of Georgia’s Intellectual Property Law Journal and was the President of the school’s Intellectual Properly Law Association. He was recipient of the 2005 CALI Excellence for the Future Award for finishing first in his class in the Law School’s required Ethics course and was also a 2005 recipient of the American Bar Association’s (ABA) Law Student Division’s Certificate of Appreciation for his work organizing the ABA/Internal Revenue Services’ Volunteer Income Tax Assistance program in law schools throughout Georgia and Alabama.
Mr. Walter has gained from having experienced a wide variety of legal positions prior to joining Herbert Chestnut & Associates, including clerking for Georgia Superior Court Judge Samuel Ozburn, the Office of the Attorney General of Alabama, and the Jackson County District Attorney’s office.
Mr. Walter has also been recognized as a published legal author. He was the Second Place Winner, in an American Bar Association law student writing contest, for his article “The New Face of Electronic Discovery,” which was published in the Fall 2005/Winter 2006 Georgia Law Advocate. He also co-authored the 2005 article “Recent Developments in Internet Law,” has been a regular columnist in an ABA Appellate law newsletter, and was a contributing author to the ABA’s Model Jury Instructions project for Trademark, Trade Dress, and Copyright Litigation.
Mr. Walter joined Herbert Chestnut & Associates in 2007. His practice focuses on Workers’ Compensation under the State Laws of Georgia, the Longshore & Harbor Workers’ Compensation Act and its Defense Base Act extension, as well as Personal Injuries cases including Auto Accidents and Premises Liability (Slip and Fall) Accidents. Mr. Walter takes pride in giving personal attention to his clients. “My clients can be sure that I will be working personally on their case, not passing it off to a case manager or paralegal.” Herbert Chestnut & Associates has a proven history of achieving results for clients, but Mr. Walter notes, “it is also our goal to guide you towards decisions that are right for your health and your family, as well as the value of your settlement.”
Workers' Compensation Links
Links to our Georiga Workers' Compensation and Defense Base Act Resources:
Georgia Workers' Compensation FAQs (http://www.chestnutlegal.com/workerscompfaq.html)
Georgia Workers' Compensation Benefits Calculator (http://www.chestnutlegal.com/workerscompcalculators.html)
Georgia Workers' Compensation News and Resources (http://www.chestnutlegal.com/workerscompresources.html)
Georgia Workers' Compensation From A to Z (http://www.chestnutlegal.com/workerscompa_z.html)
Defense Base Act Workers' Compensation FAQs (http://www.chestnutlegal.com/dbafaq.html)
Defense Base Act Benefits Calculator (http://www.chestnutlegal.com/dbacalculators.html)
Defense Base Act News and Resources (http://www.chestnutlegal.com/dbaresources.html)
defensebaseactblog.com - The Defense Base Act Blog deals with the legal aspects of the Defense Base Act Extension to the Longshore and Harbor Workers' Compensation Act as it pertains to U.S. contractors injured in Iraq, Afghanistan, and throughout the world.
This information is made available for educational purposes only, to give you general information and a general understanding of the law, not to provide specific legal advice. This should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
What is Workers' Compensation?
In Georgia, Workers’ Compensation operates as a “no fault” system for compensating injured workers for time missed from work and for costs of necessary medical treatment. The system presents trade-offs for Georgia workers. While it bars claims against an employer for personal injury, it also bars some of the defenses an employer could use against a workers’ claim such as “assumption of the risk” or that the injury was caused by a fellow employee.
This system means you cannot sue your employer in State/Superior court for your injuries, like you would in other instances. Instead, an injured employee is compensated according to a schedule set out by the Georgia State Board of Workers’ Compensation. Sadly, this means you will not be able to sue your employer for such things as pain and suffering from your injuries.
Eligibility for Georgia Workers' Compensation
What workers are entitled to Workers' Compensation in Georgia?
The foundation of workers’ compensation law is in defining who is an employer and an employee for workers’ compensation purposes. Unfortunately, it is not always as simple as “I work for Company X, therefore Company X is my employer and I am his employee.”
The basic rule as to whether an employee/employer relationship exists involves two seemingly simple criteria; 1) a person in the service of another, who is 2) under contract of hire.
The good news: There is no requirement that a work contract be written Actual pay may not be necessary (ex. Volunteer firefighters or police, elected officials) Minors can still benefit from workers’ compensation even if they are working in violation of child labor laws Unlike many states, migrant workers and temporary employees are covered
The bad news: MANY types of employment or employers are NOT subject to workers’ compensation
Types of employment NOT covered by WC
• Domestic servants • Farm laborers • Railroad common carriers • Sports officials (umpire, judge, linesman, scorekeeper, timekeeper, etc.) • Licensed real estate salespersons with independent contractor agreements • Partners in a business • Independent Contractors
Number of Employees - WC does NOT apply to employers that do not have at least three employees operating in the same business within Georgia. • These minimum three employees must be “regularly in service” within the state. • The term “regularly” does not mean constantly or continuously, only that there is a routine practice by the employer to utilize three or more employees, even if that many employees are working on the date of an accident. • In most situations your boss will count towards the three employee requirement.
Employers often do everything they can to classify their employees as independent contractors to protect themselves from having to pay workers’ compensation to their injured employees. There may be a debate as to whether you are in fact an independent contractor, but if you one, you are not entitled to workers’ compensation. While it can be complicated determining whether you are an employee or an independent contractor, below are some of the factors to look at in determining your status: • CONTRACT - Existence of an independent contractor agreement signed by the worker • PAY - An hourly or salaried worker is likely an employee. When a worker is paid on a per-job basis he may be viewed as an independent contactor. • TAXES - If an employer withholds taxes, the worker is more likely an employee. However, just because your wages are reported on 1099 tax form instead of a W-2, your employer has not automatically made you an independent contractor. • TYPE OF WORK - If the workers’ job is part of the regular business of the employer, rather than some additional service to the business, it would favor the employer/employee relationship. • JOB “TOOLS” - Who supplies the tools, supplies, or materials of the job? If the worker supplies all their own tools and materials it likely indicates an independent contractor relationship. • HOURS - If the employer controls a workers’ hours, it likely indicates an employment relationship. • OVERALL CONTROL - If the employer controls how a worker does their job, as opposed to simply requiring certain results, the worker is likely an employee. These “how” factors focus on the hours, manner, methods, and means of performing the work.
Covered Georgia Workers' Compensation Injuries
What kind of injuries are covered under Georgia Workers' Compensation?
Georgia’s workers’ compensation laws require that for compensation to be due, an injury to an employee must 1) “arise out of” and 2) “in the course of” employment. These are deceptively complicated requirements here in Georgia. There is no clear cut test for either of these requirements. Below are some of the major considerations:
“Arising out of employment” • Must be a causal connection between the condition of the work and the resulting injury • Injury must relate to the employment and not be independent if it • An accident arises out of employment when the accident arises because of the employment “In the course of employment”: • An accident must occur within the time period of employment • At a place where the employee reasonably may be in the performance of their duties • While the employee is fulfilling their duties
Is my at-work injury covered by workers’ compensation?
Aggravation of preexisting conditions Your employer is required to pay for an at-work aggravation of your preexisting conditions. However, they are only required to compensate you to the point where you have returned to the pre-aggravation condition. For example, if you are over the age of 40, your back is likely not as healthy as it was when you were in your 20s. You might have what doctors call “degenerative discs” in your spine. These discs can be injured more easily than healthy discs, but your employer would still need to compensate you should you injure your back at work.
Occupational Diseases Your employer may be required to pay for an “injury” due to a disease which is a specific risk of your job. In some rare circumstances this can include a psychological or nervous injury due to long-term stress or other job-related factors. There can be complicated limitations to coverage for occupational diseases. If you wish to proceed with a claim based on a disease believed to be developed out of the course of your employment, it is highly advisable that you contact an attorney.
Practical jokes/horseplay injuries An employer is not required to pay for an injury to a party engaging in horseplay or practically joking during working hours. However, an injury suffered by an innocent employee due to the horseplay of a fellow employee is covered.
On the job fights/assault Generally, injuries during fights at work are not compensable where the fight is not related to your employment. Additionally, an injury resulting from an assault by a third party (non-employee) at work is not covered where the assault by a third party is for reasons personal to the employee. For example, the assault of a store clerk during a robbery would be compensable, but an assault by a fellow employee or third party arising from a dispute over who has the fastest car would not be compensable.
Psychological or emotional illnesses Generally, psychological or emotional injuries are only covered to the extent that the condition arises from a physical injury. In other words, if an employee develops a psychological condition, like depression, based on a purely emotional situation it likely would not be covered. However, if the same condition resulted from an underlying physical injury, it would be covered.
Additionally, if an emotional injury, like stress, manifests itself in a physical way, those physical injuries (ex. headaches or blurred vision) may be covered by workers’ compensation.
Is my off/after work injury covered by workers’ compensation?
Off-work aggravation of work injuries You employer is required to pay for many off-work aggravation of work injuries. However, an employer would not have to pay for an injury if it was found that the negligence of the injured employee in aggravating the condition had completely broken the connection to the previous injury.
After work activity injuries If you are injured while not actually working, but participating in a work activity or recreation event (like a company picnic or softball game) the injury may be covered by workers’ compensation. While no one fact controls, below are several factors that may be weighed to determine whether the injury is covered: • Did the accident occur on the employer’s premises? • Was the event/team organized by the employer? • Did the employer pay for the activity? • Did the employer benefit from employee participation in the event?
Injuries going to and from work For employees who work at a fixed location and do not travel as part of their job (unlike taxi cab drivers, truckers, pizza delivery persons), injuries sustained while going to or from work are not covered. However, there are some exceptions to this rule: • When an employer has furnished transportation to the employee • When the employee runs a beneficial errand for the employer while going to or leaving work (ex. an accident while dropping off mail for your employer on the way home) • When the employee is on call • When the employee is reimbursed for transportation costs • When the injury occurs in your employer’s parking lot as you arrive or leave
Rest Breaks/Lunch Breaks Injuries during scheduled lunch or rest breaks are generally not covered by workers’ compensation. However, injuries during unscheduled rest breaks may be covered in some instances, depending on the employer’s rules regarding breaks as well as what you were doing during that break.
During both lunch and rest breaks, if you are doing something in furtherance of your employer’s business or by your employer’s instruction, an injury during that time is likely covered by workers’ compensation. Examples include running an errand for your boss during lunch or carrying tool from one part of a shop to another during a rest break. These actions transform the non-work period into covered time.
Business Related Travel When traveling on business for your employer, most injuries are going to be covered regardless of when it occurs. However, there are exceptions to this rule.
Notifying your employer of an injury
Notice of the injury must be given either orally or in writing within 30 days after the accident or within 30 days after a death from an accident. There are however, some exceptions to this rule: • When the employee has been prevented from giving notice by physical or mental incapacity • When the employee is prevented from giving notice by the employer’s fraud or deceit • When the employer (or a supervisor or foreman) has knowledge of the accident
Your employer must be told not only of an accident, but that you were injured from the accident. However, this notice does not need to come directly from an injured employee. It could come, for example, from an employee’s spouse, child, or a fellow employee. The notice must be made to someone in management (like a supervisor or foreman), not just a fellow employee.
If an injury is not known until more than 30 days after the accident, the 30 day period does not begin to run until you first had reason to realize the injury was from the accident.
In the case of a gradual injury (like a slowly developing back problem) that causes you to stop working, you must still give notice to the employer that you are stopping work because of the work-related injury.
Cash Benefits in Georgia Workers' Compensation
What cash benefits am I entited to under Georgia Workers' Compensation?
I’m an “injured employee,” what benefits am I entitled to?
An injured employee covered by workers’ compensation is entitled to medical treatment at the employer’s expense. If the employee misses any work due to the injury or is permanently injured the employee is likely due one or more of three types of cash benefits. These cash benefits are: • Total Temporary Disability (TTD) • Total Partial Disability (TPD) • Permanent Partial Disability (PPD)
Your Workers’ Compensation benefits are first based on a term called your “average weekly wage.” That wage figure is then applied to the type of disability benefits you are entitled to.
You’re average weekly wage is computed by averaging your wages from the 13 weeks prior to the injury. This figure includes salary, hourly pay, tips, meal allowances, lodging allowances, clothing allowances, and even year-end bonuses. Depending on how much you worked/made in the 13 weeks before the injury, this calculation could end up benefiting you or unfairly setting your wage lower than you think it should be.
If you did not work for the 13 weeks preceding the injury (maybe you were hurt on your first day) your wage is usually set by the wage of a similar employee for the 13 weeks prior to your injury.
Temporary Total Disability (TTD) Benefits
You are entitled to what is known as TTD benefits if your work injury results in your total disability from work. TTD benefits are two-thirds of your of your average weekly wage, but no more than $500 per week for injuries occurring on or after July 1, 2007. For injuries occurring prior to July 1, 2007, please use our TTD benefits calculator (link). Unless your injury is determined to be “catastrophic,” you are only entitled to TTD benefits for a maximum period of 400 weeks from the date of injury.
“Catastrophic” injuries are not subject to the 400 week cap and include such injuries as paralysis, brain injury, severe neurological disorders, total blindness, and amputations of an arm, hand, foot or leg. An attorney can advise you if your injury may be “catastrophic” under Georgia law.
You do not necessarily have to be 100% physically disabled to be disabled from work. It does mean that you have a 100% impairment of earning capacity.
If you are able to return to light duty work and your employer cannot or will not accept you back at work, you may still be entitled to TTD benefits.
Temporary Partial Disability (TPD) Benefits
You are entitled to TPD benefits when your earning capacity is impaired but you are not totally disabled from work. This means if you are injured and are unable to earn a weekly wage equal to the wage you were earning, you are entitled to two-thirds the difference between your wage before and after the accident, but no more than $334 per week. Your employer when you are injured is responsible for paying this benefit whether you are earning a lower wage with the same or a different employer. You are eligible for these benefits for up to 350 weeks after you are injured.
Permanent Partial Disability (PPD) Benefits
Unlike TTD and TPD, this benefit relates entirely to your level of physical disability, not your earning capacity. An employee may be entitled to this benefit even if they never missed a day of work or lost any wages due to an injury. PPD is based entirely on a formula that takes into account your percentage of impairment (as determined by your doctor, not your employer), the part of the body impaired, and your compensation rate.
However, PPD benefits will not begin until after an employee stops receiving weekly TTD or TPD payments. See our Compensation calculators (link) to learn more about how PPD benefits are computed.
Penalties for late payments
If you are not paid your TTD, TPD, or PPD benefits on-time, your employer may owe you a 15% penalty in addition to the amounts they already owe you. This is true if your employer incorrectly denied you your benefits for a period of time, or if they are already paying you your weekly benefits and miss a payment or mail it to you late.
Waiting period for receiving benefits
An injured employee is NOT entitled to any cash benefits for the first 7 days they are hurt unless the injury period lasts for at least 21 consecutive days. In other words, if you are out of work due to injury, your employer does not need to pay you any cash benefits until the 8th day of disability. If you are still disabled after 21 days, your employer must then go back and compensate you for the first week of your disability.
Medical Benefits Under Georgia Workers' Compensation
What are my rights to medical beenfits under Georgia Workers' Compensation?
The Good News: Unlike most situations with cash benefits, your medical benefits are basically never-ending. In other words, once you have an “accepted” claim, one in which your employer or their insurer has paid you income benefits or has paid for your medical treatment, your employer owes you treatment related to that injury for as long as it takes to cure you, provide relief, or restore you to suitable employment. This obligation could go on for your entire life depending on the injury.
The Bad News: Your medical information in workers’ compensation is not confidential. Your employer and their insurance company will likely receive a copy of your medical information relating to your work injury. Also, the employer/insurer may not be required to pay for medical treatment from unauthorized doctors.
What doctors/hospitals/clinics can I receive treatment from?
Maybe the tightest held secret in workers’ compensation is that your employer is required to and likely has posted somewhere in the deep recesses of your workplace a document called a “Panel of Physicians.” This document must contain a list of six doctors or facilities with whom you have the right to seek treatment at your employer’s expense. At least one doctor will need to be a licensed orthopedic surgeon. Orthopedics specialize in chronic and traumatic injuries to the body. However, your employer will likely encourage you to go to an industrial clinic for treatment of your injuries. Know that even after visiting this clinic you still have the right to choose to see an orthopedic surgeon who specializes in injuries like yours.
If your employer fails to post this “Panel” or does not allow you to select a doctor from this list they forfeit any control over who you receive medical treatment from. In other words, if you have a compensable work injury, your employer will be stuck paying for any doctor you choose to treat your injuries. For that reason your employer has probably unceremoniously placed this very important document on a wall in a break room next to seldom read minimum wage information, state/federal permits or business licenses, and safety information. Click here for a picture of a typical panel of physicians. (INSERT LINK/PICTURE)
Once you have identified your employer’s panel of physicians, take clear a picture of it (many people even have cell phone cameras that can do this). If you have the chance, take it down and make a photocopy of it. If no panel of physicians exits, take a photo of the area in which legal notices are hung where no panel is posted.
I don’t like my doctor, can I get a new one?
An employee is entitled to make one change in treating physicians from one physician to another on the same panel of physicians without any special authorization. Aside from picking a new doctor from your employer’s panel you will likely need to have the employer agree to a change. If your employer refuses to allow a change outside the panel of physicians you may make a request to the State Board of Compensation and petition them to allow a change in physicians. This request is make using form WC-200b which is available here. (link to location of form 200b)
Additionally, if you are receiving any income benefits from your employer, you have the right to one independent examination (known as an IME) by a physician of your choosing at your employer’s expense. While this doctor will not become your regular physician, if their opinion differs from your regular doctor it may provide a new direction for your treatment or support a claim for a change of physicians.
Unfortunately, your employer is not limited to one request for an IME and may require you to go to as many independent medical evaluations (IMEs) as they wish to pay for. Failing to attend IME appointments may result is the suspension of your benefits until such time as you attend the appointment.
Reimbursement of mileage expenses
Your employer is likely in no hurry to tell you, but they are required to compensate you for your medically related travel costs. With gas prices as high as they are, your travel expenses may be more considerable than you think. Your employer must compensate you at the rate 40 cents per mile traveled from your home to: your doctor’s office, physical therapy, the pharmacy, and any other place of examination or treatment.
If you are required to travel away from your home city, the employer may also be responsible for the cost of meals and lodging.
We encourage you to keep an accurate log of all your mileage and submit it to your employer/insurer each month. If you never submit a mileage log for reimbursement you will never receive compensation for all the gas you burn up as a result of your injuries.
Not every situation can be covered in a general discussion on this site. We would encourage you to speak with an attorney and get advice on your individual claim.