Repetitive or cumulative injury and workers’ compensation

In certain jobs, particularly heavy labor jobs, the cumulative effects of working can result in injury to the employee.  Many employees assume their work did not cause their injury simply because they did not suffer an identifiable traumatic accident on a particular date.  However, the Georgia Court of Appeals has held that “[c]umulative trauma over time, which does not lend itself to identifying a specific incident or date as the onset of the injury, nevertheless may be found to be an injury under [the Workers Compensation Act].”  DW Adcock, MD, PC v. Adcock, 572 S.E.2d 45, 257 Ga. App. 700 (Ga. App., 2002).

The importance of this rule cannot be overstated.  Often, when an employee is injured at work through cumulative trauma or repetitive motion, the employee is encouraged to use private health insurance to cover medical bills, and if available, short-term or long-term disability insurance to cover lost wages.  The former results in out-of-pocket expenses such as co-payments on medical visits, testing, hospital stays and medication.  The latter often has vastly different, and usually lower, standards for when an employee’s disability payments may be terminated, if it is available at all.  Worse, if an employee is terminated (for example, for exceeding available leave under the Family Medical Leave Act), they often have to pay for the private health insurance themselves under COBRA.  This can create a substantial financial hardship on employees and their families.  Remedies available for wrongful termination of disability insurance are neither as easily resolved nor often as clearly provable as entitlement to workers’ compensation benefits.

Many employees do not pursue a workers’ compensation action in such cases because they are concerned about being fired for reporting a work injury, or because they simply do not know such injuries are compensable under the Workers’ Compensation Act.  Others do not wish to receive a windfall for being injured.  There are unfortunately few remedies under Georgia law for an employer terminating an employee for filing a workers’ compensation claim, however, there are advantages to the employee under the Workers’ Compensation Act in such cases.  For example, an employer who terminates an employee because of his work injury must pay the employee wage benefits without the employee having to prove he is otherwise unable to work, for example by performing a diligent job search.  And because workers’ compensation is a compromise system where the employer gives up the right to contest liability for work injuries in exchange for the employee losing the right to recover for non-economic damages such as pain and suffering or wrongful death, there is no windfall to be had in a workers’ compensation case.  The workers’ compensation system is set up to benefit both employers and employees by ensuring employers do not suffer devastating financial liability for injuries to their employees, and employees do not suffer devastating financial loss when they are hurt on the job.  Contrary to some employees’ concerns about receiving a windfall for being injured, the truth is that allowing the employer to retain the benefit of the workers’ compensation system (limitations on the types of damages that are recoverable) without living up to their responsibilities under the Act (paying valid claims to employees) results in a windfall to the employer.

Knowing your rights under the Georgia Workers’ Compensation Act, and the purposes of the workers’ compensation system, will allow you to better withstand the financial and physical hardships of a cumulative work injury.

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