GEORGIA WORKERS' COMPENSATION AND COVID-19
We here at the firm hope you and your families are healthy and are quarantining as much as is practicable in these interesting (dare we say unprecedented) times. From a professional standpoint, there is no doubt that as positive Coronavirus disease cases increase, it is going to affect us in the workers' compensation arena. It is inevitable many employees will point to their workplace as the spot where they contracted COVID-19.
When you begin receiving your Corona virus cases, the applicable statute to reference in determining compensability is the occupational disease statute, O.C.G.A. 34-9-280, which imposes a far greater burden of proof than the standard burden that is required in a regular injury claim. The statute states:
"Disablement" means the event of an employee becoming actually disabled to work, as provided in Code Sections 34-9-261, 34-9-262, and 34-9-263, because of occupational disease.
"Occupational disease" means those diseases which arise out of and in the course of the particular trade, occupation, process, or employment in which the employee is exposed to such disease, provided the employee or the employee's dependents first prove to the satisfaction of the State Board of Workers' Compensation all of the following:
A. A direct causal connection between the conditions under which the work is performed and the disease;
B. That the disease followed as a natural incident of exposure by reason of the employment;
C. That the disease is not of a character to which the employee may have had substantial exposure outside of the employment;
D. That the disease is not an ordinary disease of life to which the general public is exposed;
E. That the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence. For the purposes of this paragraph, partial loss of hearing due to noise shall not be considered an occupational disease. Psychiatric and psychological problems and heart and vascular diseases shall not be considered occupational diseases, except where they arise from a separate occupational disease.
Based on the occupational disease statute, most cases that you will receive alleging exposure at work will not meet the definition of a compensable case. Those occupations where there will be a greater chance of compensability include those in the medical profession, but even those employees will need to prove all the above prongs before their case can be considered compensable.
Should you have questions or require a legal opinion on your forthcoming Corona virus cases, please give us a call and we'll be happy to help.
GEORGIA AND COVID-19
Layoffs and Reduction of Scheduled Hours
The COVID-19 pandemic continues to impact all of us both personally and professionally. Businesses which have the ability to do so have begun transitioning their employees to a work from home arrangement. Unfortunately, the hospitality industries (hotel, bars, restaurants), travel, transportation, media, and sports simply do not have the capability of having their employees work from home. This has necessitated, at best, a reduction in employee hours, and, at worst, mass layoffs so those businesses can survive.
As it relates to your business or the business of your insureds, many of your current Claimants will be requesting TTD/TPD benefits if they are laid off or their hours are reduced (or completely zeroed out) as a result of the outbreak. From a legal standpoint, if an employee's diminution in income is not due to their work-related injury, they are not owed indemnity benefits. Therefore, if you have Claimants who were working in a modified duty position, and they are either laid off or their hours are reduced solely due to the COVID-19 pandemic, they would not be owed TTD/TPD since the diminution in income is a company-wide issue, and not related to their disability/work restrictions.
In addition, as it relates to situations in which an employee is laid off, if the separation from employment is not related to the workers' compensation claim, the employee has the burden of showing a diligent job search under Maloney v. Gordon County Farms. In order to be owed TTD benefits, the employee must show: i) he was involved in an on-the-job injury; ii) he still has restrictions on account of that injury; and iii) he has undertaken a diligent but unsuccessful search for alternate employment. Unless and until the employee proves a diligent but unsuccessful job search, they are not owed TTD benefits.
It should also be noted that the workers' compensation system in Georgia is constructed so an employee is not allowed to "double dip." So, if an employee has applied and is granted unemployment benefits, they are not supposed to receive TTD benefits concurrently with unemployment benefits.
Of course, these decisions must be made on a case by case basis. Should you have questions about the entitlement to TTD/TPD on a case where COVID-19 is part of the equation, please call or email us and we'll be happy to assist.