Workers’ rights in intoxification defense

Much attention has been brought to the dangers of drinking and driving. Less is talked about regarding drinking on-the-job, which can be equally dangerous. Not only is an intoxicated worker putting himself and others at-risk, but there is also a good chance a workers’ compensation claim will be denied to that worker should he be injured. (O.C.G.A §34-9-17(b)) However, there are many gray areas surrounding drug and alcohol screens used to determine intoxication on-the-job. An experienced attorney can ensure workers’ rights in the case of an “intoxification defense.” Although an occupational injury may have arisen out of and through the course of employment, the law and public policy will take the position that the claimant was engaged in “willful misconduct” if it is shown the worker was engaging in recreational drugs or drinking alcohol while on-the-job. This will likely result in the Employer/Insurer’s refusal to pay for any medical treatment or income benefits.  Simply refusing the drug screen generally will not help the injured worker as the law will presume the screen would have been positive. After any workplace accident, workers are generally requested to undergo drug and alcohol tests. If the test is completed within a specified period of time and shows intoxicant levels above certain thresholds, the employer and insurer can use this evidence against the worker. Specifically: alcohol screens must be administered within three (3) hours of the industrial accident.  Consequently, the chemical analysis of the claimant’s blood, urine, breath or other bodily substance must be no more than .08 grams. “drug screens” must be administered within eight (8) hours of occupational injury.  If “any amount...

Are subcontractors eligible for Workers’ Compensation?

Subcontracting is a common business practice that can help general contractors and businesses get jobs done more efficiently. But what happens when a subcontracted worker is injured on the job? Are subcontractors eligible for workers’ compensation benefits? The facts about subcontractors and workers’ comp Georgia is one of 44 states that statutorily regulates workers’ compensation within a general contractor-subcontractor relationship. While the law specifically excludes “independent contractors” from workers’ compensation coverage, “employees” of a sub-contractor should be provided with workers’ compensation by the immediate company hired to do the subcontracting performing work. However, some subcontracting companies do not have enough employees to require that they secure workers’ compensation insurance. Fortunately in this case, the injured employee may be deemed a “statutory employee” of the “general” contracting company. This analysis can be very complicated and it is very fact sensitive. The court will consider all the facts surrounding the employee’s work relationship in order to determine if the workers’ comp claim goes through the general contractor. Subcontractors in construction The construction industry is an area in which subcontracting frequently comes into play. Holder Construction Company, Balfour Beatty U.S., Brasfield & Gorrie LLC,The Conlan Company, and The Whiting-Turner Contracting Co. Inc. are among the largest construction companies in Atlanta. CA South LLC, Catamount Constructors ,Batson-Cook Company are up-and-coming in the interior construction industry. Work injuries among subcontractors, especially in the construction industry, are common. However, securing workers’ compensation benefits may be challenging as many of the companies will be pointing fingers at each other while the injured work endures the injury. It is clear that the injured worker would likely benefit from...

When an injured worker’s condition changes for the worse

It’s important for an injured worker to take an appropriate amount of time off work after being injured on-the-job. After enough time on temporary total disability, most workers are ready to get back to work. But what happens if that person’s condition changes for the worse after he goes back to work? By that time, benefits have run out. In the world of workers’ compensation, a ‘change in condition for the worse’ is generally defined as the person’s wage-earning capacity, physical condition, or status after the original condition was established under the law.  (O.C.G.A. § 34-9-104). The original condition is tied to the worker’s weekly benefits or medical status after the initial injury. It is not uncommon for a worker’s condition to worsen after returning to the rigor of work, often causing the employee to miss more work. But this time, she is without benefits. Can workers get additional benefits if their condition changes for the worse? The answer is: maybe. The burden is on the employee to show that his condition has worsened. Specifically, the worker must prove the following: (1) her condition has changed for the worse; (2) that because of this change, she is unable to continue to work; (3) that because of this inability to work, she has either a total or partial loss of income; and (4) that the inability to work was caused by the original work injury. Your legal team can help determine how best to get documentation and state your case. Also, it is important to pay attention to legal timetables when seeking recommencement of benefits. A filling must be made...

Is it Ok to attend a court hearing without a lawyer?

Since workers’ compensation cases do not go to a jury trial, some people may have the false impression that workers’ comp court hearings are simple matters to navigate without legal representation. However, we do not advise you to attend a court hearing without a lawyer.  There is an old adage in criminal trials that describes a person who represents herself before a judge, “has a fool for a client.” We believe the same wisdom applies within the workers’ compensation arena. Attempting to navigate the court system alone in a workers’ comp case is simply not a good idea. Georgia’s Workers’ Compensation system incorporates a labyrinth of over 160 rules, the Civil Practice Act, the Rules of Evidence, and many judge specific mandates that make practice of workers’ compensation law very complex.   Many things happen during a workers’ compensation hearing and case; it is important to know exactly how to react and move forward.  Additionally, the workers’ compensation claim requires counseling on medical providers, legal strategy, and other factors that will impact the overall quality of an injured workers’ recovery. In short, you have one shot at getting the best outcome you can for your case. Having experienced representation is the best way to ensure you secure the maximum benefits and the recovery time you need. Workers who go it alone may think the company insurance agent has their best interest at heart. But in reality- he doesn’t. It’s best to seek counsel in the courtroom and to navigate the ever-changing Georgia workers’ comp system as a...

Jury trials in workers’ compensation?

The short answer to this question is, no. There are no jury trials in  workers’ compensation. That does not, however mean that you may not be in court at some point.  When an injured worker goes to workers’ compensation “court,” this is generally referred to as an “evidentiary hearing,” where the claim is heard by an administrative law judge (ALJ). In this hearing, evidence is tendered by all interested parties. Georgia law created trial and appellate divisions within the organization of the State Board of Workers’ Compensation system (see, O.C.G.A. § 34-9-47.) The trial division becomes involved with workers’ compensation cases in the hearing process on an administrative level.  Some of the powers of an ALJ include: administering oaths and affirmations, issuing subpoenas, administering hearing protocol and calendaring, ruling upon offers of proof and motions, determining the compensability of claims, and adherence to the Georgia Workers’ Compensation Act. This workers’ compensation hearing is a “bench trial” meaning it is tried before judge, not a jury.  Any party dissatisfied with the judge’s written decision or “award” may petition a direct appeal to the State Board’s Appellate Division.  At this stage, the parties will argue as to whether the judge’s award was legally proper and supported by the evidence.  No new evidence may be presented before the Appellate Division as it is restricted to the evidence of records presented before the ALJ.  The parties have the opportunity to present oral arguments before the Appellate Division wherein the State Board Appellate judges may ask the attorneys particular questions pertaining to the parties’ position.  However, the lawyers are only provided 5 minutes each...