EG Summer 2024 Gazette

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Chief Editor: Tracie Childers, Associate, Orlando

Editor: Lexi West, Junior Partner, Atlanta

Editor: Libby Nelson, Associate, Orlando

Wages in Lieu of Compensation

    By: Joel Brakken, Associate, Jacksonville

    So You Have to get Deposed!

      By: Chance Cuellar, Associate, Atlanta

      Too Little, Too Late: Statute of Limitations Issues in Georgia WC Claims

        By: Jordan Goldring, Associate, Atlanta

        Wages in Lieu of Compensation

        By: Joel Brakken, Jacksonville

                    The issue of wages in lieu of compensation is a combination of both workers’ compensation laws and federal wage and hour laws. Florida Statute 440.09(1) provides that the employer must pay compensation or furnish benefits required if the employee suffers an accidental compensable injury or death arising out of work. Chapter 69L-3 defines full salary in lieu of compensation to mean any money an employer pays the employee as salary, wage, or other renumeration for a period of disability for which the insurer would have otherwise been obligated to pay compensation benefits.

        The First DCA has stated that there must be a clear understanding between the employer and claimant such that the employer will continue to pay the claimant’s wages instead of the claimant obtaining workers compensation benefits. If the employer chooses to continue to pay the claimant’s wages, the employer must ensure that they are not requiring the claimant to use fringe benefits and also that the payment is not being considered a gratuity from the employer to the claimant. Medina v. Miami Dade County, 300 So.3d 255 (Fla. 1st DCA 2020); see also, City of St. Augustine v. Allen, 404 So2d 1115 (Fla. 1st DCA 1981).  Likewise, the Court has also found that an employer cannot substitute vacation and PTO time in place of the Employer/Carriers responsibility to provide benefits or salary continuation in lieu of workers’ compensation benefits, as those benefits do not satisfy the employer/carrier’s statutory obligation to pay benefits for a workplace injury. Nolan v. Delta Airlines, 733 So.2d 1076 (Fla 1st DCA 1999).

                    Unlike carrier made TTD/TPD payments, wages paid by the employer are taxable and therefore it is important that if an employer chooses to continue to pay the claimant after an accident, they should continue to do so at the full rate of the claimant’s pre-accident salary or average weekly wage. Because of the tax implications of wages paid by the employer, taking any offset typically applicable to TTD/TPD benefits could result in the claimant receiving less money resulting in prejudice to the claimant and issues ripe for litigation.

                    All things considered, here are a few key takeaways for situations in which an employer elects salary continuation instead of paying workers’ compensation benefits:

        1. Employers should continue to pay at 100% of the claimant’s pre-accident salary or average weekly wage;
        • The employer cannot require a claimant to use PTO/Vacation/Sick to receive wages in lieu of compensation and. Use of PTO/Vacation/Sick time are not considered wages in lieu of compensation. However, if a claimant is receiving TTD/TPD payments from the insurance carrier, they can elect to use their vacation and sick time balance to offset the reduction of wages up to their full salary.

        If you encounter any scenarios you are not quite sure of, please always feel free to reach out to our EG team. We are happy to help.

        So, You Have to get Deposed!

        By: Chance Cuellar, Georgia

        Oh no!! You’ve just received the dreaded email from your attorney that the Claimant’s attorney is requesting to take your deposition. What do you do next, panic? Well, you shouldn’t! Adjuster and Employer depositions do not happen in Georgia as often as other states; however, Claimant’s attorneys are pushing more and more for Adjuster and Employer depositions. Making sure you are prepared is extremely important. To help prepare you for those future depositions, below is a list of 20 tips. Be sure to review them before you have your next deposition!

        Preparation for Depositions – 20 things to remember!

        1. Be prepared. Review the case. Review your notes and claim notes. Do not go into a deposition with no recollection of the case. Even though that would make the deposition easier to just say “I don’t know” to everything, it can make your testimony impeachable later.
        • Give clear verbal answers. Don’t nod your head up and down or side to side and don’t hum yes and no, such as “uh-huhs,” or “uh-uhs.” Testimony should be crystal clear, so when the transcript is read, the answer is obvious. Although we use these forms of communication in everyday conversation, a deposition is more formal, and all answers should be obvious.
        • Think before answering. Pause if needed. Listen to the entire question and think about it before you answer. The deposition doesn’t record time so take a breath and think about the question. Wait for the entire question to be asked and don’t answer immediately; otherwise, you risk giving away information that is not being asked. This happens a lot. Often, the attorney may be trying to truck or trap you, so pausing and thinking will allow you to think more about what is being asked. It will also give your attorney a chance to make an objection if necessary.
        • Only one person can talk at a time. Wait until the attorney finishes his question completely before you start answering. The court reporter cannot take down what two people are saying at the same time. It also means you are not thinking before you are answering. Don’t interrupt the question. Take your time before answering, think through the answer thoroughly, and give a proper response.
        • ONLY answer what is asked. Don’t volunteer information or give testimony about something that was not asked. Your duty is to tell the truth and answer only the question that has been asked. If you get the question, “Do you have a cell phone?” Just say, “Yes.” Do not say, “Yes. I have an iPhone 13 and its silver, with a red case.” Just say “Yes.” Keep your answers brief. This is the only time they get to ask you questions.
        • Tell the truth. No matter what. Even if it hurts the case.
        • Don’t answer a question unless you understand it.  If they ask a question you don’t understand, ask them to repeat it. You have the right to understand the question before you give an answer. If you give an answer to a question, they will assume you understood it and your answer was truthful. If you thought you were giving an answer to a question when the opposing attorney was asking a different question, then you might harm your case. If in doubt, ask for clarification or rephrasing of the question. If you don’t fully understand a question, ask for clarification. You can request that the lawyer define unfamiliar terms, rephrase the question, or be more specific. Make sure you fully comprehend the question before responding.
        • Do NOT bring documents. Do not bring notes or other documents with you to your deposition or have access to them easily. If you do so, the attorney will have a chance to request to review them and question you about them line by line. Also, some notes and written communications are privileged, but that privilege may be waived if you use those items to assist with your testimony.
        • Do not get mad. If you get mad, you will not be able to think, and it makes you look like the bad guy. Just be nice and get through the deposition. Even if the questioning is uncomfortable, be nice. Do not get angry no matter what!
        1. Objections. Your lawyer may object to certain questions asked by the defense attorney. If that happens, wait until he or she is finished. The court reporter will note the objection on the record for a later ruling by the judge at trial. After most objections, you will be instructed to answer the question anyway. However, some questions are objected to because they seek privileged information, which you do not have to answer. For instance, something said between you and your attorney is subject to the attorney‐client privilege. Under those circumstances, your attorney should object and instruct you not to answer. Try not to be distracted if you hear an objection.
        1. Don’t guess. If you do not know the answer to a question, say so. Nobody has a perfect memory. “I do not know” is a proper response to a deposition question if you truly do not know. Also, do not guess if you do not have personal knowledge of the question asked.
        1. If you do not remember, say so. You can’t remember everything. So, if you knew it at one point, but cannot remember, that is okay.
        1. Stick with your answers. If your original answer to a question is accurate, do not waiver. Attorneys use the tactic of asking the same or similar question repeatedly or in different ways in an attempt to get a different answer. Stick to your original answer and do not let the opposing attorney put words in your mouth or influence your testimony with this tactic.
        1. Let silence linger. After you have answered the question, do not speak until the next question is asked. Sometimes witnesses get uncomfortable with long silences and feel compelled to keep talking. Be silent! You must ignore the silent treatment. Wait for the next question.
        1. Just embrace the questions that don’t matter. Deposition questions can sometimes cover irrelevant topics. Because depositions are used as a discovery tool, the opposing counsel can ask the witness about virtually anything, including work experience, personal relationships, criminal background, credit history, other accidents, lawsuits, claims and beyond. These types of questions can be very personal and get into sensitive and private matters that have nothing to do with the case. Most of the questions and your answers are not admissible and would not come into evidence at trial, just know that you may get asked those questions.
        1. Read and Sign or Waive. At the end of the deposition someone is going to ask if you want to read and sign the deposition, or if you want to waive that right. You have a right to read the transcript of your deposition and correct any mistakes or inaccuracies, but you cannot change your testimony.
        1. Do not get cut off if you want to explain. Explain your answer if required. Lawyers like to ask questions that can easily be answered by simply a “yes” or “no.” As a witness, you are entitled to answer “yes” or “no” but then can explain your answer where an explanation is required to be clear.
        1. Review documents before you answer. If a question pertains to a document, don’t be afraid to review that document before you answer. A witness is allowed to review referenced documents before giving an answer during a deposition.
        1. Fix things during the depo if you remember something. Don’t be afraid to circle back. During a deposition, if an answer comes to you as to a question asked earlier, you are perfectly entitled to go back to the previous question and provide an answer during the deposition.
        • Communications between you and your attorney are privileged. What you and your attorney discuss is off-limits. Do not answer any question asking for this type of information. Allow your attorney to object when such questions are asked.

        I hope these tips can come in handy for future deposition! Feel free to email me at if you have any additional questions.

        Too Little, Too Late: Statute of Limitations Issues in Georgia WC Claims

        By: Jordan Goldring, Georgia

        Have you ever noticed that after being retained, many Claimants’ attorneys immediately file “all issues” hearing requests? In practice, that means they are filing a WC-14 Request for Hearing (rather than a mere Notice of Claim) that seeks TTD, TPD, and PPD benefits payable from the date of accident and perhaps “all reasonable and necessary medical treatment pursuant to the Act.” This happens even in claims where the Employer/Insurer is already authorizing medical treatment with a panel doctor and/or already voluntarily paying indemnity benefits. You may have also noticed that some Claimants’ attorneys immediately file a WC-14 Notice of Claim and select hearing issues in Section B even though they do not actually request a hearing over those alleged issues. At least one explanation for this frustrating, yet odd pattern is that the Claimant is trying to toll or circumvent the statute of limitations.

        On the other hand, sometimes employees suffer “first aid” or “report only” injuries and are able to continue performing their normal job duties for over a year without issue or further injury. Eventually (and typically after termination or some other disciplinary issue at work), employees retain an attorney who files a WC-14 with the Board. In these situations, we often see questions from Employers and Insurers regarding whether a claim is barred by the statute of limitations. Fortunately for Employers and Insurers, the Act imposes time frames in which an injured worker must file a workers’ compensation claim in Georgia. If a claim is not filed within the statute of limitations, the Claimant’s claim for benefits may be barred. Unfortunately, there are multiple statutes of limitation, and they are extremely convoluted and confusing.

        So how late is too late?

        Well, that depends. There are multiple statutes of limitation found in the Georgia Workers’ Compensation Act in  O.C.G.A. § 34-9-82(a). One applies to “all issues” claims and the others to “change in condition” claims.”  The “all issues” statute of limitations most commonly applies where a claim has been accepted as “medical only” or where a claim has been validly controverted. The “change in condition” statute of limitations typically applies where either the Board has previously issued an Award for income benefits or the Employer/Insurer has voluntarily paid income benefits on the claim (i.e., accepted the injury as fully compensable). Similar language regarding the request for additional indemnity benefits is also found in O.C.G.A. § 34-9-104(b).

        Although there are time restraints for filing a claim that restrict the employee, there are also time restraints for asserting the statute of limitations defense that restrict the employer. A statute of limitations defense is an affirmative defense that must be raised at the first hearing at the Trial Division level or it is considered waived. Thigpen v. Hall, 46 Ga. App. 356 (1933). In practice, it is best to list the statute of limitations as the reason for controverting the claim (on the WC-1 or WC-3) at its inception.

        1. The All Issues Statute of Limitations (O.C.G.A. § 34-9-82(a))

        O.C.G.A. § 34-9-82(a) reads, “[t]he right to compensation shall be barred unless a claim therefor is filed within one year after injury.”

        1. Claims Must Be Filed Within One Year From the Date of Accident:

        That means, if an employee suffered an accident by injury arising out of and in the course and scope of his employment on January 1, 2024, he must file a WC-14 with the Board by January 1, 2025. However, if an employee can testify that he was injured on a particular day and describes in detail the manner in which the accident happened, then proof that the accident did not occur on that date became a material, though not necessarily controlling issue. Skinner Poultry Co. v. Mapp, 98 Ga. App. 772 (1958).

        In these instances, the statute of limitations defense may not bar a claim. In the Mapp case, the Claimant suffered a progressive worsening of his condition (or cumulative trauma injury) but could not recall the specific date on which he was “injured.” Through the Employer’s investigation of the claim, they learned he was not actually at work on the date of accident listed with the Board. Although the claim denial was upheld on by the Court of Appeals, it was on the grounds that the accident did not arise out of or in the course of Employer, rather than because the statute of limitations had run. Id.

        1. Controverted & Medical Only Claims:

        When claims are denied immediately after the accident and report of same, the one-year “all issues” statute of limitations applies. That means, if the Employer/Insurer controverts the claim on the WC-1 within 21 days of the date of accident, the Claimant must file a WC-14 within one year from the date of accident or his claim is barred. This is true even if the claim may have actually been compensable. The statute of limitations defense is all or nothing. However, even where the Employer/Insurer do not timely controvert a claim, an employee must still file a claim within one year from the date of accident. Raines & Milam v. Milam, 161 Ga. App. 860 (1982).

        The same one-year statute of limitations applies in claims where only medical treatment has been authorized or furnished. Oftentimes, claims are initially accepted on a “medical only” basis while the Employer/Insurer continues to investigate the claim and determine overall compensability. Accordingly, Claimants sometimes receive initial treatment from the panel and/or at the expense of the Employer/Insurer. However, unless indemnity benefits have also been paid, the mere payment of medical benefits by the Employer/Insurer does not toll the indemnity statute of limitations. Georgia Pacific Corp. v. Sanders, 171 Ga. App. 799 (1984). As such, a Claimant must file a WC-14 noticing a claim within one year from the date of accident, or his claim for indemnity benefits will be barred.

        For example, in Wier v. Skyline Messenger Services, the Claimant suffered an injury on June 30, 1988, and the Employer/Insurer authorized medical treatment. 203 Ga. App. 673 (1992). Income benefits were never paid, and the Claimant’s last medical appointment was on July 26, 1988. On December 1, 1989, the Claimant tried to return to the ATP, which the Employer/Insurer denied asserting the all-issues statute of limitations. The Court of Appeals ruled in favor of the Employer/Insurer because there had been no prior award finding the claim compensable and no voluntary payment of income benefits. Thus, it was still an “all issues” claim.

        II.     The Change In Condition Statute of Limitations

        O.C.G.A. § 34-9-82(a) further provides, “if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury, the claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits.”

        1. Additional Treatment Must Be Sought Within One Year From the Date of the Last Remedial Treatment Furnished by the Employer.

        Second, a claim for additional medical benefits must be filed within one year from the date of the last “remedial treatment furnished by the employer.” You are probably wondering what counts as “remedial” and in what circumstances treatment is “furnished by the employer.” Thankfully, the Court of Appeals has given us some guidance. “Remedial” treatment need not be remedial by definition. In other words, a mere appointment or evaluation by a medical provider typically qualifies a “remedial” for purposes of O.C.G.A. § 34-9-82(a). Lastly, it is the date of the last treatment that controls rather than the date the treatment was paid for. Queen Carpet, Inc. v. Moynihan, 221 Ga. App. 797 (1996).

        The case law becomes slightly more fact specific and nuanced when determining whether or not such remedial treatment was “furnished by the employer.” If medical treatment has been authorized and paid for by the Employer/Insurer, then that treatment was arguably “furnished by the employer.” Fortunately, payment of treatment under a group health policy funded by the employer will not toll the statute of limitation. Leavell v. Life Ins. Co. of Ga., 165 Ga. App. 770 (1983). However, sometimes an injured worker seeks treatment on his own after an accident without the knowledge of the Employer/Insurer. If the Employer/Insurer in this situations had a valid panel of physicians, then treatment with an off-panel provider is not generally considered “furnished by the employer.” Paideia Sch. v. Geiger, 192 Ga. App. 723 (1989).

        On the other hand, if the panel was invalid (or there was no panel), Board Rule 201 allows an injured employee to seek treatment with any physician of their choosing. Thus, treatment with the employee’s personal doctor will likely be deemed “furnished by the employer” since the employer would have been responsible for payment of that treatment anyway in light of the invalid panel. Ga. Inst. of Tech. v. Gore, 167 Ga. App. 359 (1983). It is important to note that even where the panel is invalid, if the employee fails to seek treatment within one year of the date of accident (or within one year of the last remedial treatment furnished by the employer), a statute of limitations defense is still viable. Poissonier v. Better Bus. Bur., 180 Ga. App. 588 (1986).

        1. Additional TTD or TPD Benefits Must Be Sought Within Two Years From the Last Payment of Weekly Indemnity Benefits.

        The all-issues statute of limitations may also be tolled where the Employer/Insurer have paid income benefits. The Court of Appeals has adopted an “actual payment” rather than a “mere obligation” standard. Trent Tube v. Hurston, 261 Ga. App. 525 (2003). As such, the date that triggers the running of the two year statute of limitations is the date the check was mailed, not the date the claimant receives it. Lane v. Williams Plant Servs., 330 Ga. App. 416 (2014). In the Hurston case, the Court of Appeals determined it is the date on which benefits are actually paid that determines when the statute of limitations start running. Unfortunately, the law goes both ways on this issue if the Employer/Insurer makes late payment of TTD benefits.

        In practice, this means that even if the Claimant may have been due additional indemnity benefits beyond the last payment by the Employer/Insurer (whether it be due to an improper suspension, inability to accommodate restrictions, termination, etc.), the Claimant still must file his claim within two years from the date of the last actual payment of benefits by the Employer/Insurer. Similarly, if the last TTD check was dated May 1, 2024 and covered the pay period of April 28, 2024 through May 4, 2024, the Claimant must file a claim for additional indemnity benefits before May 1, 2026. Using the same example, if the last TTD check was dated May 10, 2024 and covered the paid period April 28, 2024 to May 4, 2024 (i.e. the check was late), the Claimant has two years from May 10, 2024 to file a claim for additional benefits. In the foregoing example, if the Employer/Insurer did not issue late penalties until May 14, 2024, that would be the date that triggered the running of the statute of limitations. Because late penalties are included in the statute (O.C.G.A. § 34-9-221(e)) and are required to be paid with the benefits, the Court of Appeals held they are essentially one in the same within the context of the statute for statute of limitations purposes.

        But, beware! There is also a two-year statute of limitations for the Employer/Insurer to seek reimbursement, reduction, or suspension of indemnity benefits. O.C.G.A. § 34-9-104(b) mandates that a party seeking an award from the Board ending or decreasing income benefits must file a corresponding WC-14 Request for Hearing not more than two years have elapsed since the date the last payment of income benefits.

        1. PPD Benefits Must Be South Within Four Years From the Last Payment of Weekly TTD or TPD Benefits.

        In short, any party may file for benefits solely under O.C.G.A. § 34-9-263 not more than four years from the date the last payment of income benefits pursuant to O.C.G.A. §§ 34-9-261 or 34-9-262 (i.e. the last TTD or TPD payment).

        So how little is too little?

        In addition to time restraints on filing claims with the State Board, there are also requirements to a proper filing. There must be more than the mere giving of information. State Hwy. Dep’t v. Cooper, 104 Ga. App. 130 (1961). A proper claim filing must include a request for relief, benefits, for action, or for a hearing to obtain same. Any defect or inaccuracy in the notice will not bar compensation unless the employer can prove that its interest was prejudiced thereby, and then only to the extent of the prejudice. Davison-Paxon Co. v. Ford, 88 Ga.App. 890 (1953). For example, in the Ford case, the Claimant sustained fatal injuries on January 10, 1951. His widow then filed a  claim on December 5, 1951 listing a November 1, 1950 date of accident. Because the accident actually occurred on January 10, 1951, and the claim was filed on December 5, 1951 (within a year from the time of her husband’s death), the claim was not barred by the one-year statute of limitations.

        Finally (and perhaps most importantly), the Court of Appeals has held that merely filing a WC-14 Notice of Claim (as opposed to a WC-14 Request for Hearing) does not toll the statute of limitations. Tara Foods v. Johnson, 297 Ga. App. 16 (2009). For example, if a Request for Hearing is filed within two years of last payment of income benefits, it would not toll the statute of limitations if the hearing request only seeks medical benefits. Id.

        Please note that this is a brief summary of the statute of limitations in Georgia workers’ compensation. If you think you may have a statute of limitations defense in your claim, please contact us (preferably prior to authorizing medical treatment or commencing indemnity benefits) to determine whether a viable statute of limitations defense exists.