There have been countless times that I have watched an injured worker suddenly have his or her temporary total disability (TTD) benefits (a.k.a. wage-replacement benefits) suspended by the workers’ compensation insurance company, even though the TTD benefits were due and owed. Unfortunately, the laws in Georgia are in need of major reform, because they are grossly inadequate in helping injured workers who face this situation. I began practicing law with a gleam in my eye and the desire to make the world a better place – I was filled with hope and optimism that I could assist people with improving their lives and navigating the laws. After 18 years of practicing workers’ compensation law, I am sad to report what I have now come to believe- Georgia’s workers’ compensation laws are UNFAIR and do not properly protect injured workers. Let me explain why.
The compensation rate is too low. If an injured worker is totally disabled from working due to his or her work injuries, he or she is entitled to only 2/3rds of the wages he or she was making at the time of his or her injury. For example, if an injured worker was earning $500 per week (which would equate to an annual salary of $26,000 per year), he or she would only receive $333.33 per week (which would equate to $17,333.16 per year) while totally disabled from working due to the injury. Moreover, in the event that 2/3rds of the weekly wages totals more than $575 per week, unfortunately the injured worker is limited to a maximum of $575 per week. Georgia law caps the weekly TTD benefits at a rate of $575 per week, regardless of what the pre-injury wages were. How is an injured worker supposed to meet his or her financial commitments previously made, if his or her TTD benefit compensation rate is significantly lower than what he or she was making prior to the work accident? WHY IS THE INSURANCE COMPANY NOT REQUIRED TO REPLACE THE LOST WAGES DOLLAR FOR DOLLAR? For years, the party line has been “The goal of the WC laws is to get the injured worker back into the job force as quickly as possible, and if an injured worker is sitting at home and receiving 100% of his or her lost wages, then he or she will be less likely to want to return to work.” The problem with this proposition is that, it assumes bad faith on the part of the injured worker, and it completely ignores the fact that the injured worker is not able to return to work because he or she is totally disabled as a result of an injury sustained during the course and scope of employment.
There’s a 21 day waiting period before the insurance company has to pay monetary benefits following a work accident. The law provides that the insurance companies will not owe an injured worker TTD benefits (wage-replacement benefits) until at least 21 days immediately following the work accident. People who live paycheck to paycheck do not have the luxury of waiting 21 days to eat, so why do they have to wait 21 days in order to have their TTD (wage-replacement) benefits commenced? The laws allow the insurance companies to delay payment to injured workers.
The penalty for late payment is totally insufficient. There is only a nominal penalty assessed against the insurance company for illegally not paying an injured worker. If an insurance company suddenly stops paying an injured worker his or her weekly TTD benefits, which happens all the time, the penalty the insurance company has to pay to the injured worker is as follows:
- 15% after the benefits are more than 7 days late (if the insurance company voluntarily began paying TTD as opposed to being ordered to pay the TTD benefits), OR
- 20% after the benefits are more than 7 days late (if the insurance company began paying TTD only after being ordered to pay the TTD benefits).
The injured workers I know have debt obligations – they have responsibilities. If their rent, utility bills, car payments, etc. are due on the first of the month, and their weekly wage-replacement checks do not arrive timely, the damage incurred to the injured worker is often lights out, eviction, or no food on the table. A 15% penalty which is $15 for every $100 paid late is simply insufficient to make up for the damage caused to the injured worker due to an untimely payment.
Per the law, there is also a possibility that the Employer/Insurer will have to pay attorney fees to the injured worker’s attorney, in the event the injured worker’s attorney had to take action to secure the TTD benefits. However, it is up to the discretion of the Judge as to whether attorney fees are awarded, and, based on my experience, attorney fees are almost never assessed against the insurance company. Furthermore, an award of attorney fees does not change the injured worker’s financial situation in any way; an injured worker’s attorney is paid based on a contingency fee and not out of the injured worker’s pocket, so an attorney getting awarded fees does nothing to help the injured worker.
Because the penalty assessed against the Employer/Insurer is so nominal in the event of late payment, the Employer/Insurer really has no incentive to ensure that the TTD benefits are being paid timely or at the correct rate.
Conclusion: The laws in Georgia need to be reformed. The maximum compensation rates needs to be increased, the waiting periods for commencement of benefits need to be shortened, and the penalties for non-payment or late payment of benefits need to be increased. When an injured worker becomes totally disabled from working, he or she suddenly has to cope with a significant change in lifestyle – he or she goes from being a productive, wage-earning individual to an individual who now has to rely on the whims of a workers’ compensation insurance company to decide whether or not weekly TTD income benefits will be paid. The system needs to address the needs of the injured workers of Georgia, and our injured workers need to be treated with the dignity and respect that they deserve. Write your legislators!