Representing the Workers’ Compensation Claimant

by Miles L. Gammage
Mundy & Gammage, P.C.

This article originally appeared in the Georgia Bar Journal and is reprinted with permission of the author.

As in most personal injury cases involving contingency fees, if you want to be a claimant’s attorney strictly for the money, get out now!

Representing injured workers can be frustrating, but it can also be rewarding if you know what you are doing. The key is endurance, and the understanding that when you represent an injured worker you represent his or her entire family. Remember, everyone is affected when a weekly pay check stops coming in. Evictions and repossessions are common problems. You can talk yourself to death telling your client that you do not handle criminal cases, child support arrearages, and the like, but if you handle “comp” cases, you will. It is easier to do it, than spend hours trying to explain that you are just a comp lawyer. So if you plan on doing workers’ compensation cases, be ready to call the butcher, the baker and the candlestick maker to beg for another 30 days for your client. Why do it? My reason is fairly simple. It has to do with a job well-done for your client, getting paid and perhaps most importantly, making a long-term friend and source of referral.

Injured workers need to relate and they expect the same. Talk to them as they talk to you. You must know how your client feels and what he or she expects before telling them what the law will allow. In some instances it is necessary to advise a claimant not to file a workers’ compensation claim as it may result in disqualifying them for other and more beneficial income. For example, in order to receive workers’ compensation benefits of $300 per week, your client may have to give up $600 per week in long term disability benefits. When things like payment of medical bills, transportation to and from the doctor and in-home attendant care enter the equation, it’s harder than you think.

State very clearly up-front the limits of your representation. Explain your contract: what your contingency fee is and the basis for computing it and what case expenses are. Your clients need to understand they are in this for the long haul and so are you. Only through communication and cooperation can the end result be satisfactory for both client and attorney.

Before getting into some of the basic elements of a workers’ compensation case, it is worthwhile to state that success in the field of workers’ compensation practice depends to a great extent on having a competent secretary or legal assistant. Workers’ compensation law is a statutory creature and the State Board of Workers’ Compensation operates almost entirely on the use of preprinted forms. You need someone to help you that can master these forms and the procedural requirements. Call the State Board for copies of their forms and for help. I have never found the personnel at the State Board unwilling to answer any question I had about a form or how to use them properly.

Legal issues in the field of workers’ compensation cases are many, but typically the first one that you will be confronted with is whether an injury arose out of and in the course of your client’s employment. However, the ultimate question is usually whether your client has a disability from a work-related injury that has resulted in wage loss and medical expense.

A claim for injury may not result in an immediate disability. It may be a medical claim only. If a physician takes an employee out of work totally or imposes limits or restrictions on the work of the employee, the disability benefits must be paid by the employer pursuant to either O.C.G.A. § 34-9-261 or O.C.G.A. § 34-9-262. Payment of benefits must begin within 21 days of the disability or your client may be entitled to a statutory penalty.

An employee must give notice to the employer of injury or accident (O.C.G.A. § 34-9-80). This giving “notice” operates to trigger the provisions of the Workers’ Compensation Act in its entirety. If an employer should refuse to acknowledge notice, I have found that a certified letter from the employee setting out the circumstances works very nicely if the case eventually goes to a hearing.

If an employer refuses to voluntarily pay indemnity benefits or medical expenses for a work-related injury, it will be necessary for you to request a hearing on a WC Form-14 (Request for Hearing). The matter will be set down within 60 days before an Administrative Law Judge (ALJ).

At the hearing, the ALJ will request each side to provide a brief and succinct statement of their respective contentions. No opening or closing statements are permitted. Since the ALJ is familiar with the law governing workers’ compensation cases, requests to charge are not necessary. Following the hearing, each side is permitted to file written briefs summarizing the testimony and evidence presented and legal argument. Importantly, live medical testimony or depositions are usually unnecessary in a workers’ compensation case as any medical report setting out the examination, diagnosis, treatment and prognosis of your client is admissible pursuant to O.C.G.A. § 34-9-102(e)(2). Note also that the report does not have to be from a medical doctor as this code section permits the admissibility of a report from any qualified medical practitioner, e.g., a chiropractor, physical therapist, etc.

The Rules of Civil Procedure and the rules of discovery apply in workers’ compensation cases. You must request all of the medicals that the employer has and plans to introduce as well as any surveillance information that they have regarding your client. The employer will usually object to providing this information, but the State Board has consistently ruled that all such evidence is discoverable.

Be sure to read and go over all medicals with your client. It is amazing to me how many clients forget to tell you about prior injuries. This is something that can result in your losing a case. Remember, prepare yourself and prepare your client.

Rulings by an ALJ are appealable to the State Board of Workers’ Compensation. A decision by the State Board is also appealable to the Superior Court in the county where the injury occurred, not in the county where the administrative hearing was held, and then finally to the Court of Appeals.

If you win your case involving an injury, the employer/insurer may offer your client a “light duty” job within any restrictions set out by the authorized physician. The authorized physician must approve the job. O.C.G.A. § 34-9-240 and State Board Rule 240 governs this situation.

If your client returns to work with restrictions but has to come out of work due to his injury and inability to perform his job before the end of the fifteenth day of his return to work, the employer/insurer must immediately reinstate his benefits. Most employers do not do this and find themselves in a “bad faith” position which may result in add-on benefits for your client and attorney’s fees for you.

If your client is able to work with his restriction more than 15 days, but then develops problems related to his injury and work, you must request a “change in condition” pursuant to O.C.G.A. § 34-9-104 based on the lack of suitability of the job. If the authorized physician then takes the employee out of work again, the employer must reinstate his prior benefits. A change in condition request will be necessary, but it is usually accompanied by a call from the defense attorney posing the question of possible settlement of the case.

Speaking of settlement, O.C.G.A. § 34-9-15 governs the settlement of a workers’ compensation case. Note, all settlements must be approved by the State Board. Until approved by the State Board, there is no settlement. Your attorney’s fees and case expenses are governed by O.C.G.A. § 34-9-108 and O.C.G.A. § 34-9-221. They must be set out in the settlement documents and also approved by the State Board. All of the terms and the conditions of the settlement must be clearly stated and spelled out in the settlement agreement. Always include language in a settlement agreement that protects your client’s right to potential Social Security disability benefits.

It is impossible to cover all the necessary requirements to properly handle a worker’s compensation case in this limited space. Suffice it to say, experience is the greatest teacher. But remember this, once the word gets out in your community that you are ready and willing to help injured workers and stick with them even after an initial loss, you will see your caseload increase exponentially. Good luck.

Miles L. Gammage: Member of the firm of Mundy & Gammage, P.C., Cedartown, Georgia 30125 representing only injured workers. Member of the Georgia Trial Lawyers Association; Workers Compensation Claimant Lawyers Association; American Trial Lawyers Association; American Bar Association; Georgia State Bar; Polk County, Floyd County and Atlanta Bar Association; Executive Committee member of the Trial Lawyers and Compensation Lawyers Association.