Georgia Injury Lawyer Blog

Thirteen (13) people have died (and many more injured) as a result of burns and other injuries sustained in the explosion at the Imperial Plant in Port Wentworth, Georgia. Investigators have expressed the opinion that sugar dust ignited and caused the explosion which resulted in these injuries and deaths. Because most of the people burned, injured or killed as a result of the explosion were employees of Imperial Sugar, unfortunately, they will be barred by law from suing their own employer. This is the state of law in Georgia. Workers’ Compensation benefits are available to injured employees but injured employees cannot sue their employer. The one exception to this “non-suit” rule is where a third party’s acts contributed to the injuries and/or caused the same. The employer still cannot be sued, but other “third party” companies can be sued if their acts contributed to the damages sustained.

From newspaper reports, it appears that Imperial Sugar contracted with a company called Stokes Contracting to clean sugar dust at the plant. Obviously, a full investigation would be required to see what the contractual duties and undertakings were, but assuming the newspaper reports are true, those injured and/or killed may have claims against Stokes Contracting and/or any other entity that provided such cleaning services. If the failure to properly clean the sugar dust out of the plant was a proximate cause of the explosion, then there could be third party liability claims brought against that third party, in this instance, apparently, Stokes Contracting.

Cases of this nature are always tragic for the families involved and for those seriously burned or injured. While only time will tell whether there are valid third party claims to be made, one would hope that the injured and severely burned would have remedies other than those provided under Georgia’s Workers’ Compensation statutory scheme. The Georgia Worker’s Compensation statutory scheme is quite limited in the remedies it provides to those injured on the job. For example, pain and suffering is not awarded at all and lost wage benefits are typically quite low, usually below $500.00 per week, which is very difficult for those who have been injured to live on. While Workers’ Compensation medical benefits are good, because these types of burn injuries can last for years and years, it is evident that those involved in these incidents will suffer for a lifetime and yet they receive no pain and suffering compensation under Georgia’s Workers’ Compensation scheme. This it is why it is important that someone involved in an incident of this nature confer with competent counsel to make sure that any third party remedies against third parties who may be also liable for their damages can be pursued.

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Posted In: Premises Liability , Torts , Workers Compensation , Wrongful Death

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Our Georgia injury lawyers are accustomed to seeing cases involving horrible injury and cases of death caused by all types of accidents but burn cases are at the top of the list. We were discussing the news accounts today in Savannah reporting that firefighters found three, and perhaps as many as six, bodies in the wreckage of a still-burning sugar refinery leveled by an explosion overnight. In addition to the death cases, dozens of employees have been injured, many critically burned. Officials suspect sugar dust, which can be volatile, as the cause of the explosion. Reportedly the explosion happened in a storage silo where refined sugar is stored until it is packaged.

Obviously all of the injured employees will immediately be entitled to workers compensation benefits, including payment of all medical bills but given the very limited disability benefits available under the workers compensation laws of Georgia, this is very little consolation to the injured. Having litigated products liability cases involving injury and death, we wonder whether there are some third parties who may be liable for this explosion. Surely, this huge sugar refinery was aware of the potential danger posed by sugar dust. Was there a system in place which failed? Was ventilation machinery defective or not properly maintained by third party entities hired by the refinery? All of these questions and more need to be explored in order to adequately protect the interests of injured workers and the families of those who died in this tragedy.

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Posted In: Premises Liability , Products Liability , Torts , Workers Compensation , Wrongful Death

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One of the most tragic circumstances we as lawyers face in our daily practice is representing clients who have suffered serious personal injury or the wrongful death of a loved one due to the negligence of an uninsured (or underinsured) driver. Regrettably, we have seen this far too many times. The results of being involved in a collision with an uninsured driver are particularly tragic because in such cases there simply are no available funds to compensate the innocent victims. This, of course, reminds us once again of the importance of uninsured/underinsured insurance coverage for those who can afford it as part of their budget. Without such coverage, if a serious injury or wrongful death occurs, the likelihood of recovery when dealing an uninsured driver is remote.

We were retained just two weeks ago to represent a man who lost his wife in an accident involving a drunk driver. In this particular case, the driver was not completely uninsured, but rather underinsured. He had the absolute minimum statutory limits of $25,000 in available coverage per person, $50,000 per accident. The medical bills alone for this man and his wife both exceeded these minimum limits. Regrettably, our client had no uninsured/underinsured coverage under his own policy. What this means of course is that the $50,000 which is available will have to be used to satisfy Hospital Liens and literally there will be no money to pay even for funeral bills, much less compensate the family for the losses sustained. The “at fault” driver, while responsible for all of these expenses, is very likely judgment proof working at a job with a minimal salary with no ability to pay any judgment that might be obtained in the case. Thus, we have the situation we have seen far too many times where innocent people are seriously injured or suffer the death of a loved one due to the negligence of an uninsured/underinsured driver.

Of course, the statutory scheme is set up such that drivers in Georgia are no longer allowed to get their tags without having proof of insurance coverage. Nonetheless, as stated, the statutory minimum in Georgia is $25,000 per person, $50,000 per accident. In any case involving a serious injury or wrongful death, such limits are woefully inadequate to address medical expenses or lost wages, much less compensation for pain and suffering or a death. Thus, we reiterate that all Georgia citizens should consider purchasing uninsured/underinsured insurance coverage to protect themselves from either the completely uninsured driver or the underinsured driver. With respect to underinsured drivers, obviously, the minimum limits of $25,000 per person coverage, $50,000 per accident are grossly inadequate to address the kinds of damages we see here in our practice all the time in serious injury cases. We have blogged about this topic before (See Uninsured Motorist Blog dated June 8, 2007) and would once again recommend to the motoring public that they protect themselves with their own uninsured/underinsured insurance coverage because many, many drivers have the absolute minimum limits of coverage and are themselves judgment proof, thus leaving the innocent victim to his own resources in the event they are involved in a collision with an uninsured/underinsured driver.

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Posted In: Automobile Accidents , Torts , Uninsured Motorist Coverage , Workers Compensation , Wrongful Death

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Uninsured Employers is a growing problem for injured workers in Georgia. In our practice we have seen a growing number of employees who have been seriously injured only to discover that their employers have no workers’ compensation insurance coverage. Many of those employers have no real assets and they are therefore “judgment proof.”

I recently read that on November 9, 2006, the Governor of Pennsylvania signed into law a significant change in the Pennsylvania Workers Compensation Act. Like Georgia, the Pennsylvania Workers’ Compensation Act covers all injuries to employees at work. It is a no-fault system, with the injured employee only having to prove that he was injured while working in the scope of his employment and is disabled. In Georgia, all employers who have three (3) or more employees are required to carry workers’ compensation insurance. However, some do not in violation of the Georgia Workers’ Compensation Act. Many injured employees who work for small business can never collect if the employer did not carry workers’ compensation insurance.

Under the new Pennsylvania law, a fund was created for an injured worker to collect, even if the employer had no insurance. This fund, called the “Guaranty Fund”, was created so that employees that have worked for irresponsible, uninsured employers, now have a remedy. This is a huge benefit for such injured workers and the Georgia’s Workers’ Compensation Act needs to be amended in a similar manner to provide a safety net for Georgia’s injured workers.

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Posted In: Workers Compensation

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The Georgia Supreme Court issued a sharply divided ruling on Monday which is a great decision for employees who travel. The 4-3 decision turned on an interpretation of the “continuous employment” doctrine. The High Court upheld an award of workers’ compensation benefits to the 11 year old son of a man killed as a result of an automobile accident in Georgia. The employer had put the Florida resident up in an apartment in Fayetteville, Georgia while he was working as a construction superintendent here. The employer also provided him with a company truck that he was driving at the time of the accident. The employer and it’s workers insurer had denied the claim for death benefits on the ground that the employee was not acting in the course of his employment when the accident occurred. At the time of the accident, he was on sick leave and had been delivering family furniture to his storage shed in Alamo, Georgia.

Four of seven Justices on the Supreme Court of Georgia said that because King had returned to the general Fayetteville/Jackson area when he was killed in the motor vehicle accident, his minor son had a valid death claim.

The significance of this ruling is that it expands the “continuous employment” doctrine and makes it more likely that workers traveling away from home on business will be covered under their employers workers’ compensation insurance if they are injured.

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Posted In: Workers Compensation

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In Georgia employees who become disabled, due to injury, and remain out of work for any significant period of time are likely to be sent for a functional capacity evaluation. An FCE is a systematic evaluation process to determine an individual’s tolerance for physical work activities. These evaluations take on many forms. The most common evaluations involve a series of standardized tasks with measured weights and distances, and a trained and presumably an experienced observer to administer the tests. Other methods involve the use of machines to measure peak performance and range of motion. The results of these evaluations are frequently used to direct treatment and rehabilitation efforts, and in legal proceedings, to determine work capacity and eligibility for indemnity benefits.

Physicians, employers, insurers, and claims adjusters often rely upon functional capacity evaluations to determine musculoskeletal capacity to perform physical work, often with legal or occupational consequences. Despite their widespread use in Georgia, a number of scientific, legal and practical concerns persist. FCE’s are based upon a theoretical model of comparing job demands to worker capabilities. The validity of FCE results is best with accurate job simulation and detailed, intensive, assessments of specific work activities. Many times the person performing this evaluation does not know or understand an injured worker’s job. When test criteria are unrelated to an injured employee’s actual job performance, or subjective evaluation criteria are employed, the validity of results is questionable. Many times, the person administering the evaluation makes comments in the final written report about whether or not the worker has put forth maximum effort, even inferring malingering on occasion. The evaluation of sincerity of effort, ability to perform complex or variable jobs, and prediction of injury based on FCE data is problematic and in our opinion subjective and unreliable.

An injured worker who is asked to undergo an FCE should retain counsel to represent them in a workers compensation case. Lawyers should scrutinize both the methodology of the evaluation and the qualifications of the person administering the evaluation. In some cases, the FCE results may be inadmissible under Daubert v. Merrell, 509 U.S. 579 (1993)

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Posted In: Workers Compensation

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We cannot tell people how many times unrepresented, injured workers sabotage their cases by failing to comply with their own obligations under the Georgia Workers’ Compensation Act. At a minimum an employee who sustains an on-the-job injury must do the following:

1. Report any on-the-job injury within 30 days of the date of the injury. Although the law provides that an employee should notify the employer within 30 days, any injury should be reported immediately. If you do not report your injury immediately, you may afford the employer and insurance company a defense that they would not otherwise have.
2. Determine on your own whether the employer has the required panel list of authorized physicians posted.
3. Seek medical treatment from authorized treating physicians only.

As with most other aspects of the law, there are many exceptions to the general rules of the Georgia Workers' Compensation Act. If a personal does not understand their rights or if they feel that they are being taken advantage of, it is best to consult an attorney for advice early on in the case. The earlier an injured worker gets legal advice, the better the chance there will be a favorable outcome for the worker.

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Posted In: Workers Compensation

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Many people are unaware of what benefits are available to an injured worker in Georgia. Accordingly we thought it might be helpful to clients or potential clients to have an overview of the basic benefits.

(A) TEMPORARY TOTAL DISABILITY WEEKLY INCOME BENEFITS:
If you are injured and begin losing time from work, you are entitled to receive 2/3 of your average weekly wage up to a maximum of $450.00 per week. The first seven days of compensation are not payable until or unless you have missed 21 days from work. In other words, you are not entitled to weekly benefits if you miss 7 or less days from work. If you miss at least 21 days from work, you will be paid for the first 7. The first payment of weekly benefits, including the first 7 days, is due on the 21st day of disability.
For non-catastrophic injuries occurring on or after July 1, 1992, there is a maximum period of 400 weeks from the date of the injury for entitlement to this benefit. A catastrophic injury is defined as one of the following:
1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;
3. Severe brain or closed head injury as evidenced by :
a) Severe sensory or motor disturbances;
b) Severe communication disturbances;
c) Severe complex integrated disturbances of cerebral function;
d) Severe disturbance of consciousness;
e) Severe episodic neurological disorders;
f) Other conditions at least as severe in nature as any condition provided in subparagraphs a) though e) of this paragraph;
4. Second or third degree burns over 25% of the body as a whole or third degree burns to 5% or more of the face or hands.
5. Total or industrial blindness;

For catastrophic injuries there is no limit to the number of weeks that you may draw benefits.

(B) TEMPORARY/PARTIAL DISABILITY BENEFITS:
If you are able to return to work but because of your injury you are not able to earn as much money as you were prior to the date of your on-the-job injury, then you are entitled to receive 2/3 of the difference between what you made before you were injured and what you are able to make after your injury up to $300.00 per week. This benefit is payable for a maximum of 350 weeks.

(C) PERMANENT/PARTIAL DISABILITY BENEFITS:
If you have sustained a permanent impairment or loss of use of any part of your body as a result of your on-the-job injury you are entitled to be compensated for that permanent impairment. The amount that you are entitled to would depend on the percentage of permanent impairment that your doctor assigns. The Worker's Compensation Act assigns maximum values (denominated as weeks) to various parts of the body such as a leg, hand, eye, arm, etc... The Act also assigns a maximum value to the body as a whole (300 weeks)
Example: If you have sustained an injury to your back, have reached maximum medical improvement, and have been assigned a 10% permanent impairment rating to the body as a whole, then you are entitled to receive 10% of 300 weeks (the maximum assigned value of the body) or 30 weeks. If your compensation rate is $300.00 then you would multiply $300.00 times 30 weeks for a total of $9,000.00.

(D) MEDICAL BENEFITS:
The employer/insurer is obligated to pay 100% of the cost of medical treatment required to effect a cure or give relief to an injured worker; however, the employer/insurer also has the right, within limitations, to designate the provider of that treatment. By law, an employer must post a panel list of 4 doctors in a prominent or conspicuous place upon the business premises. The law also requires that the employer take all reasonable measures to ensure that the employees are aware of the existence of the panel, and their right to select a treating physician from it. The law also requires that the employers give employees appropriate assistance in contacting panel physicians when necessary.
If an employer fails to post a panel list of physicians as required by law, then you may go to the physician of your choice. If you go to a physician who is not on the panel list or is otherwise authorized, then you will be responsible for payment of the bill. There is no dollar limit on the amount of medical bills that an employer/insurer is liable to pay and under certain conditions, the employer and its insurer remain liable for payment of medical bills related to your injury for the rest of your life.
In the case of a compensable work-related injury, the employer and its insurer are also liable for certain travel expenses. You should keep a list of your trips to the various medical providers, showing the date the trip was made, the name of the medical provider, and the total round trip mileage. You will be reimbursed at the applicable rate per mile.

(E) VOCATIONAL REHABILITATION:
The Workers' Compensation Act provides, in the event of a catastrophic injury,that the employer shall furnish an injured employee reasonable and necessary rehabilitation services.
The value of vocational rehabilitation services range widely. They may include:

1. Vocational evaluation and vocational counseling;
2. Psychological testing and evaluation;
3. Job analysis; job placement and job modification;
4. Additional training.

An injured employee should make certain that the rehabilitation counselor has his/her best interests at heart and can exercise his/her independent judgment. Vocational rehabilitation providers are paid by insurance companies.

As always, it is best to consult an attorney who practices in this area of the law to discuss the facts which are specific and applicable to your case.

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Posted In: Workers Compensation

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For over twenty years, we have handled personal injury claims and workers compensation claims of all types. Anyone who has done the same has witnessed the perversion of our system of justice by medical doctors who are performing so called “independent medical exams” for insurance companies and their lawyers. It has always amazed us that medical doctors who spent years of hard work to be able to exercise their own independent judgment in diagnosing and treating injured or sick people are so ready, willing and able to misrepresent, if not lie about either an injured persons condition or the cause thereof, in order to keep the insurance company dollars coming. People who are involved in litigation know who these doctors are because they show up over and over again. There is big money in these evaluations for orthopedic surgeons, neurologist, neurosurgeons and others who are in the business of performing them.

Unfortunately, jurors are often unaware of the extent to which these physicians are used by the insurance industry and unaware of their bias. Insurance defense lawyers portray these doctors as “objective” and “independent”. Recently, a well known IME doctor admitted that he had done over 1500 independent medical examinations since 1991. He gives approximately 40 depositions a year, testifies for the defense 95% of the time and has made over $1.2 million doing this in the last eight years. In the trial of personal injury cases, including workers compensation cases, a significant issue a judge or jury must evaluate is whether the testimony of theses defense experts is objective and/or whether the doctors have a hidden bias, to wit: a propensity and motive to testify favorably to the parties hiring their alleged professional services. In Lancaster v. USAA Casualty Insurance Company, 232 Ga. App. 805, 502 S.E.2nd 752 (1998), Justice Blackburn wrote:

I write separately to point out a systemic problem in the general use of “independent” experts in the litigation process. This problem, while not limited thereto, is greatest where insurance companies use “independent” medical experts’ opinions to deny or limit payment of claims. The inherent weakness of this process is that the insurance company which controls the flow of business to “independent” medical services providers has a financial interest in the negative finding of such provider ... Where companies are established for the sole purpose of providing or selecting medical experts for insurance companies, either individually or as an industry, they can by no means be deemed to be independent.

Lawyers representing injured workers should dig deep to explore and expose this bias on the part of these paid “experts” who are harming innocent victims of accidents and subverting justice for our clients.

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Posted In: Workers Compensation

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Recently, we successfully represented a Georgia firefighter in a workers compensation claim against the county for which he worked. The injury he sustained was a heart attack. Needless to say, the employer denied his claim and took the position that his job had nothing whatsoever to do with the injury to his heart. In researching this injury, we learned that forty percent of on-duty firefighter deaths in the last decade were due to heart attack, according to a recent U.S. Fire Administration report. This is an astounding statistic. The fact of the matter is that firefighters are at great risk of suffering a heart attack because of the extreme stress and exertion under which they work when responding to a call.

In our case, our client got a call about a home on fire. With his adrenalin pumping, he jumped into his truck and headed out to the fire. When he arrived, he donned heavy gear and climbed a hill to access the home. He inhaled smoke which filled the air outside of the home and struggled to pull-start a large fan used in the doorway of the home. Ultimately the fire was extinguished and the EMS unit which had been dispatched as a matter of routine, left the scene to head back to the firehouse. As my client began to put equipment on his truck, he felt shortness of breath and a tightening and burning in his chest. EMS returned to the scene. He was later airlifted to a major hospital where he underwent testing and stent placement. In this case, our client’s heart attack occurred a day later, while undergoing a stress test on a treadmill.

In our opinion, the case turned on the testimony of his cardiologist who we deposed early on in the case. It was the cardiologist’s explanation of the mechanism of injury which made the difference in this case. He testified that most people have atherosclerosis and that there are events that cause the atherosclerotic plaque to rupture. When the plaque ruptures, the endothelium denudes itself and exposes collagen to the bloodstream. Platelets attach to the collagen and recruit a blood clot to form, which causes the obstruction/blockage. He further testified the stress of fighting a fire raises your blood pressure, anxiety associated with it, smoke in the lungs; all of these are precipitating events. He went on to explain how smoke inhalation precipitates a heart attack. “The smoke contains carbon monoxide. It helps increase inflammation. Inflammation causes the plaque to become soft and split. This process can occur over an acute time period of an hour or it can be kind of a smoldering process, as it occurred in this case.”

Getting the doctor’s medical opinion on the record early, before the insurance company and their lawyer was able to influence the cardiologist was important. If a firefighter has a heart attack, it is crucial that he or she retain a workers compensation lawyer immediately.

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Posted In: Workers Compensation

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There is an ever increasing problem for many Georgia workers who become injured and disabled as a result of work injuries. The problem is uninsured employers. We recently got a call about a new workers compensation claim from a worker who was seriously injured as a result of a fall. In fact, this worker had been in the trauma unit of a hospital for several months at the time of this call. He had multiple orthopedic injuries, including leg and arm fractures requiring many surgeries. The worst of his injuries is a serious spinal cord injury. This worker is now paralyzed from the waist down and is permanently and totally disabled. Unfortunately, his employer had no workers’ compensation insurance even though the State of Georgia requires an employer to have such coverage if they have three or more employees. Even though he sustained catastrophic injuries, he could not find a lawyer who would represent him because there was no insurance.

This is a growing problem in Georgia which needs to be remedied. There needs to be a change in Georgia law which gives an injured worker real recourse against an uninsured employer. As the law stands now, an employee can request a hearing before the State Board of Workers Compensation and seek an award of medical bills, weekly disability payments, attorneys’ fees and assessment of various civil penalties for the employer’s failure to have coverage. Even if an injured worker prevails and is awarded these benefits, the chances of collecting from an uninsured business or employer are slim to none.

Ironically the law provides if an employer has three or more employees they are subject to the Workers Compensation Act and must have insurance coverage. Unfortunately for the injured workers, the law also provides if they are subject to the Act, they cannot be sued and enjoy protection from civil liability under the exclusive remedy provisions of the Act.

It is time that the Georgia legislature remedy this problem by providing that if an employer is subject to the Workers Compensation Act and fails to have insurance coverage to protect an injured employee that he or she can sue the business and each owner, officer or director for their failure to comply with the law. This would begin to solve this very serious problem.

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Posted In: Workers Compensation

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