2102 Cheat Sheets and Help Sheets - Workers' Compensation ...

Multi-State Workers’ Compensation Law 

Quick Facts 2012 

ALABAMA 

Effective July 1, 2012 

Maximum Compensation Rate $771.00 

Minimum Compensation Rate $212.00 

Mileage Rate 

$0.50 per mile 

Miller, Christie & Kinney, PC 

www.mnclaw.com 

Vestavia Hills 

Vestavia Centre 

2090 Columbiana Rd., Suite 3400 

Vestavia Hills, AL 35216 

P 205.326.0000 

F 205.323.2945 

GEORGIA 

Effective July 1, 2007 - Present 



Mileage Rate 


KENTUCKY 

Effective January 1, 2012 

Maximum PTD/TTD Rate $736.19 

Minimum PTD/TTD Rate $147.24 

Maximum PPD Rate $552.13 

Mileage Rate 


LOUISIANA 

Effective September 1, 2011 - August 31, 2012 



Mileage Rate 


MISSISSIPPI 




Mileage Rate 


Effective April 17, 2012 

Swift, Currie, McGhee & Hiers, LLP 

www.swiftcurrie.com 

Atlanta 

The Peachtree 

1355 Peachtree Street, NE, Suite 300 

Atlanta, GA 30309 

P 404.874.8800 

F 404.888.6199 

Boehl, Stopher & Graves, LLP 

www.bsg-law.com 

Louisville 

Aegon Center, Suite 2300 

400 West Market St. 

Louisville, KY 40202 

P: 502.589.5980 

F: 502.561.9400 

Paducah 

410 Broadway 

Paducah, KY 42001 

P: 270.442.4369 

F: 270.442.4689 

New Albany, IN 

Elsby East, Suite 204 

400 Pearl Street 

New Albany, IN 47150 

P: 812.948.5053 

F: 812.948.9233 

Lexington 

444 West Second St. 

Lexington, KY 40507 

P: 859.252.6721 

F: 859.253.1445 

Pikeville 

137 Main St., Suite 200 

Pikeville, KY 41502 

P: 606.432.9670 

F: 606.432.9680 

Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley 

www.wcdefense.com 

Metairie 

3320 West Esplanade Ave. North 

Metairie, LA 70002 

P 504.831.7270 

F 504.831.7284 

www.acblaw.com 

Jackson 

216 Draperton Court 

Ridgeland, MS 39157 

P 601.707.8800 

F 601.707.8801 

Tupelo 

210 East Main Street, Suite 2J 

Tupelo, MS 38804 

P 662.840.3954 

F 662.680.5109 

Covington 

330 North New Hampshire St. 

Covington, LA 70433 

P 504.831.7270 

F 504.831.7284 

Anderson Crawley & Burke, PLLC 

Alabama • Georgia • KENTUCKY • louisiana • Mississippi • North Carolina • South Carolina • Tennessee • Texas • VIRGINIA

Multi-State Workers’ Compensation Law 

Quick Facts 2012 

NORTH CAROLINA 




Mileage Rate 


SOUTH CAROLINA 




Mileage Rate 



McAngus Goudelock & Courie 

www.mgclaw.com 

Columbia 

1320 Main Street, 10th Floor 

Columbia, SC 29201 

P 803.779.2300 

F 803.748.0526 

Charleston 

735 Johnnie Dodds Blvd., Suite 200 

Mt. Pleasant, SC 29464 

P 843.576.2900 

F 843.534.0605 

Raleigh 

5400 Glenwood Avenue, Suite 100 

Raleigh, NC 27612 

P 919.719.8200 

F 919.510.9825 

Charlotte 

6302 Fairview Road, Suite 700 

Charlotte, NC 28210 

P 704.643.6303 

F 704.643.2376 

Greenville 

75 Beattie Place, Suite 300 

Greenville, SC 29601 

P 864.239.4000 

F 864.242.3199 

Myrtle Beach 

2411 North Oak Street, Suite 401 

Myrtle Beach, SC 29577 

P 843.848.6000 

F 843.449.2306 

TENNESSEE 

Effective July 1, 2012 - June 30, 2013 

Maximum Permanent Partial Disability $806.00 

Maximum Temporary Total Disability $886.60 

TTD/PPD Minimum Weekly Benefit $120.90 

Mileage Rate 


Effective August 1, 2011 

Manier & Herod 

www.manierherod.com 

Nashville 

One Nashville Place, Suite 2200 

150 Fourth Avenue North 

Nashville, Tennessee 37219 

P 615.244.0030 

F 615.242.4203 

TEXAS 

Effective October 1, 2011 - September 30, 2012 

Maximum Temporary Income $787.00 

Benefits & Lifetime Income Benefits 

Maximum Impairment Income $551.00 

Benefits & Supplemental Income Benefits 


Mileage Rate 



VIRGINIA 




Mileage Rate 


Effective October 1, 2011 

Flahive, Ogden & Latson, PC 

www.fol.com 

Austin 

8911 Capital of Texas Hwy. 

Building 3, Suite 3300 

Austin, TX 78759 

P 512.477.4405 

F 512.867.1700 

Midkiff, Muncie & Ross, PC 

www.midkifflaw.com 

Richmond 

300 Arboretum Place, Suite 420 

Richmond, VA 23236 

P 804.560.9600 

F 804.560.5997 

Oakton 

10461 White Granite Dr., Suite 225 

Oakton, VA 22124 

P 703.938.5989 

F 703.938.5980 

Bristol 

110 Piedmont Ave., Suite 202 

Bristol, VA 24201 

P 276.644.9600 

F 276.644.4679 

Alabama • Georgia • KENTUCKY • louisiana • Mississippi • North Carolina • South Carolina • Tennessee • Texas • VIRGINIA

ALABAMA 

Standard Help Topics by State 

These Jurisdictional Help Screens are for informational purposes only. They should not be construed as a definitive synopsis of any state's laws, rules, 

or procedures. You should contact your legal counsel or Human Resources Department prior to the development of any internal policy, procedure or 

work rule. 

Topics Related to Indemnity Rates 

How is AWW calculated? Please include 

1 information regarding the earning types used to Take the 52 weeks earnings and divide by 52. You include the amount the employer pays for fringe 

§25‐5‐57(b) derive the AWW (i.e.: regular wages, tips, 

vacation, overtime, etc.). 

benefits if the employer stops paying for the fringe benefits. You include all wages including overtime. 

1.1 How is the weekly TTD rate calculated? AWW x 66 2/3% = TTD. This TTD amount is subject to the maximum and minimums set by the state. 

1.2 Maximum weekly TTD rate 2012 $771.00 

1.3 Minimum weekly TTD rate 2012 $212.00 

1.4 

How is the daily TTD calculated? Please indicate 

whether your state uses a 7‐day work week, a 5‐ TTD/7 = TTD Daily 

day work week, or something else. 

1.5 

1.6 

Is the employer required to continue health 

insurance while the employee is receiving 

indemnity benefits? If benefits can be 

terminated, does it increase the TTD rate? By 

how much? 

Does this jurisdiction use scheduled PPD ratings, 

unscheduled PPD ratings, or a combination of 

these? 

No. If the employer stops the health insurance, then the amount the employer paid per week is added 

to the AWW and therefore increases the TTD rate. 

Both scheduled and unscheduled. 

1.7 Maximum weekly PPD rate 2011 $220.00 for body as a whole 

1.8 Minimum weekly PPD rate 2011 No minimum 

1.9 

Is there a specific statutory rule which requires 

payment of PPD at a given point in the claim? If 

so, please describe the general provisions of the 

rule. 

No. You do not owe PPD unless a judge rules at a trial. However, you can settle and pay them. 

1.10 

Who determines the final PPD rating? Is it a 

physician, a judge, or someone else? 

Judge 

1.11 

Are there any other critical issues related to the 

benefit rates for this jurisdiction? If so, please 

describe. 

1.12 Benefit Offset No 

1.13 Cost of Living Adjustment No

2.0 

How is the waiting period defined? Please 

include information regarding the number of 

days, and whether these are work or calendar 

days. 

Topics Related to Initial Indemnity Payments 

3 calendar days 

2.1 Are there any “Pay without Prejudice” periods? Payment of medical benefits is not an admission of liability 

2.2 

Does the waiting period include the date of 

injury? 

Yes 

2.3 

At what point do we make a retroactive 

payment for the waiting period? 

7 days 

2.4 When is the first TTD payment due? 10 days 

2.5 

Can benefits be denied if light duty is refused? 

What must we do to document our position? 

Medical benefits can not. Employer does not have to pay indemnity to employee if employee refuses to 

return on light duty. 

2.6 


initial benefit payment for this jurisdiction? If 

so, please describe. 

Other Topics Related to Indemnity Payments 

3.0 

How often are indemnity payments issued? 

(weekly, biweekly, etc.) 

Pay based on how employee was paid. 

3.1 

Is there a statutory cap on the number of weeks 

paid for TTD? If so, please provide the details. 

No limit on weeks for TTD. PPD weeks are limited at 300 for a body as a whole, and the weeks for a 

scheduled member are set for thin the code. There is no limit on weeks for a PT claim as benefits are 

owed for life. 

3.2 

Is global settlement of both medical & indemnity 

Yes. However, the settlement must be court approved, and the judge has to agree. 

allowed? Under what conditions? 

3.3 

What are the ball park PPD ratings for soft 

tissue, fracture, or surgery on neck, shoulder, 

lumbar spine, or knees? 

Soft tissue 0‐5%. Fracture 0‐5%. Surgery on neck 5‐20%. Surgery on shoulder 10‐25%. Surgery on lumbar 

spine 0‐PTD%. Surgery on knees 10‐30%. 

3.4 

Can we settle before MMI is reached? If so, 

what is the criteria? 

No. Claimant must be at MMI before you can settle. 

3.5 

Can a voluntary resignation be obtained as part 

of the settlement agreement? 

Yes 

3.6 

Are there any other critical issues related to 

indemnity payments for this jurisdiction? If so, 

please describe. 

3.7 

What are the state rules regarding the carrier 

reimbursing the employer for a salary 

continuation program? 

N/A. State has nothing to do with employer and insurance company. 

3.8 Can indemnity checks be sent to the employer? Yes, if employee wants to pick them up at work.

Topics Related to Compensability 

4.0 

What is the statute of limitations for filing a 

workers’ compensation claim? 

2 years from date of injury or if TTD is paid from date of last payment. 

4.1 

4.2 

If a prospective employee is training and is 

injured before a formal employment agreement 

has been consummated, is the injury 

compensable? 

Yes, if the employer has right of control over employee. 

What is the Compensability Test? Please 

indicate whether the test is AOE and COE, versus The injury must arise out of and in the course of employment. 

AOE or COE. 

4.3 

Please describe any statutory deadlines for 

making a compensability decision. 

No specific timeframe. It is a reasonableness standard. 

4.4 

Please describe briefly any statutory defenses to 

a workers’ compensation claim. 

Wilfull misconduct, suicide/self injury, intoxication or drug impairment, preexisting, statute of 

limitations, notice 

4.5 Are volunteer workers covered? 

4.6 

Are illegal aliens covered? If not, what is needed 

Yes 

to support denial? 

4.7 

Are there special rules regarding coverage for 

independent contractors? 

Independent contractors are not covered. 

4.8 

Are cumulative trauma claims compensable? If 

so, under what circumstances are they 

compensable? 

Yes, must arise out of and in the course of the employment. 

4.9 

Are psychological stress claims compensable? If 

so, what are the rules regarding mental/mental, 

mental/physical, physical/mental origin? 

Psychological claims are compensable only if there is a physical injury. 

4.10 


compensability for this jurisdiction? If so, please 

describe. 

4.11 

Can benefits be denied if the employee was 

under the influence of drugs or alcohol when 

injured? What levels are required (BAC) to 

support denial? What must we obtain to 

support a denial? 

Indemnity benefits can be denied but employer has to prove that drugs or alcohol were proximate 

cause of injury. Medical benefits are probably owed (no case law has ever decided). 

4.12 Compensability for Recreational Activities 

Topics Related to Death Claims 

5.0 What is the maximum statutory death benefit? Not to exceed 500 weeks. 

5.1 What is the allowance for burial expenses? $3,000 

5.2 

Describe any specific rules regarding 

dependency. 

Children (adoptive and illegitimate) are dependents until they reach majority. Spouse is dependent. If 

spouse remarries, they are no longer a dependent.

5.3 

If there are no dependents, are death benefits 

paid to another entity, such as a state fund? 

$7,500 to estate 

5.4 


death benefits for this jurisdiction? If so, please 

describe. 

Topics Related to Vocational Rehabilitation 

6.0 

Is vocational rehabilitation compulsory in this 

jurisdiction? 

No, employer can compel employee to submit to retraining if plaintiff is suited for retraining. 

6.1 

Under what conditions is a claimant eligible for 

vocational rehabilitation? 

Employee unable to return to prior job because of injury. Age, pre‐injury occupation and aptitude are all 

considered. Need testimony from doctor and vocational expert that claimant can be retrained. 

6.2 

Generally, what types of benefits are paid for 

vocational rehabilitation? Are these provided by Vocational retraining is at expense of the employer. 

the carrier or by the state? 

6.3 

What is the exposure for terminating an 

You would owe TTD benefits for time from TTD stopped until claimant is at MMI. 

employee before they reach RTW or reach MMI? 

Topics Related to Financial Recoveries 

7.0 

Describe the rules for regarding the type of cases 

which are eligible for a second injury fund No secondary trust fund in Alabama. 

recovery. 

7.1 

7.2 

What is the statute of limitations with reference 

to pursuing a subrogation recovery? 

If the claimant does not bring a claim within the applicable statue of limitations then once the statute 

runs, the employer has 6 months to file the lawsuit. 

Describe the statute regarding our right to 

pursue a subrogation recovery. Does the statute The claimant does not have an obligation to protect your subrogation. You need to have in writing that 

give preference to our lien when a third party claimant will protect or intervene in third party case. 

case is resolved? 

7.3 

What formula is used to determine the amount 

of our recovery? 

For detailed answer, please contact the attorneys at Miller, Christie & Kinney at www.mnclaw.com. 

7.4 


subrogation or other recoveries for this 

jurisdiction? If so, please describe. 

Topics Related to Medical Control 

8.0 

Describe the jurisdictional rules regarding 

employer/carrier medical control. 

Employer picks initial authorized doctor. If employee is dissatisfied and further treatment is necessary, 

then employee can request a panel of 4 to choose a new doctor from. 

8.1 

Are there restrictions regarding the scheduling of 

No IME unless claimant agrees, or if not, employer has to show to court that IME likely to improve 

an Independent Medical Exam? Does an IME 

medical condition. 

have to be authorized by a judge? 

8.2 

Are there any instances where surveillance 

footage is legally prohibited from being 

forwarded to the treating or IME doctors? 

No 

8.3 


medical benefits for this jurisdiction? If so, 


8.4 IME Generalized Rules 

No IME unless claimant agrees, or if not, employer has to show to court that IME likely to improve 

medical condition.

8.5 Medical Privacy Rules 

Miscellaneous Topics 

9.0 Extraterritorial Coverage Claim can be brought in Alabama if injury in Alabama or contract for hire in Alabama. 

9.1 WC Jurisdictional Link(s) 

9.2 Sole Remedy Alabama has an exclusivity provision. 

9.3 Does the jurisdiction allow medical discovery? Yes 

9.4 Adjuster residency requirement? Must be licensed in Alabama. 

9.5 

Is there a Bad Faith cause of action available for 

a claimant and what is recoverable? 

No

GEORGIA 


These Jurisdictional Help Screens are for informational purposes only. They should not be construed as a definitive synopsis of any State's laws, rules, 


work rule. 


The average weekly wage is computed in accordance with O.C.G.A. § 34‐9‐260, which outlines three 

distinct methods of computation. The most common method is the 13‐week wage basis. If the employee 

has worked substantially the whole of the 13 weeks immediately preceding the date of accident, the 

average weekly wage is calculated averaging these weeks. Second, if the employee was not working 

substantially the whole of the 13 weeks preceding the date of the accident, the average weekly wage 


may be calculated using the 13 weeks of a similarly situated employee. Such an employee will be one 

1 information regarding the earning types used to 

who is not necessarily in the precise same job classification and pay scale as the injured employee but 

§25‐5‐57(b) derive the AWW (i.e.: regular wages, tips, 

who at least performs a similar‐type job for the same employer. The last method used to calculate the 


average weekly wage is the full‐time weekly wage method. This simply means that the average weekly 

wage will be calculated by using the hourly wage rate paid to the employee multiplied by the number of 

hours the employee was normally scheduled to work in a full‐time week. In Georgia, the average weekly 

wage basis includes tips, meal, lodging and clothing allowances, and year‐end benefits. The wage basis 

does not include health insurance payments by the employer. 

1.1 How is the weekly TTD rate calculated? 

TTD is calculated by taking two‐thirds of the employee's gross average weekly wage, not to exceed 

$500.00 per week for injuries occurring on or after July 1, 2007. 

1.2 Maximum weekly TTD rate 2012 

The maximum weekly benefits a claimant may receive for an injury occurring on or after July 1, 2007, is 

$500.00. 

1.3 Minimum weekly TTD rate 2012 The minimum weekly benefits a claimant may receive is $50.00. 

1.4 


Unless the contrary appears, it is assumed that a normal work week is five days, that the normal work 

whether your state uses a 7‐day work week, a 5‐ 

day is eight hours, and that the employee's daily wages is one‐fifth of the weekly pay. 


1.5 

1.6 





how much? 



these? 

No. 

Georgia uses scheduled PPD ratings in accordance with O.C.G.A. § 34‐9‐263. 

1.7 Maximum weekly PPD rate 2012 The maximum weekly PPD rate in Georgia is $500.00 for an injury occurring on or after July 1, 2007. 

1.8 Minimum weekly PPD rate 2012 The minimum weekly PPD rate in Georgia is $50.00. 

1.9 




rule. 

The payment of PPD benefits are due when the claimant is no longer receiving TTD or TPD benefits for 

his on the job injury. O.C.G.A. § 34‐9‐263(b)(3). 

1.10 



PPD ratings are to be determined by the authorized treating physician in accordance with the Guides to 

the Evaluation of Permanent Impairment , Fifth Edition, published by the American Medical Association.

1.11 



describe. 

The maximum compensation rate is determined by the date of injury. 

1.12 Benefit Offset 

An employer/insurer may be entitled to a credit for unemployment compensation and/or weekly 

income benefits made on behalf of an employee pursuant to a disability plan, a wage continuation plan, 

or a disability insurance pollicy. Additionally, employer/insurer may be entitled to a benefit offset based 

on benefits paid from other jurisdication. 

1.13 Cost of Living Adjustment No cost of living adjustment. 

2.0 




days. 


An employee is not entitled to indemnity benefits for the first seven calendar days of incapacity 

resulting from an on‐the‐job accident until the employee has been disabled for at least twenty‐one 

consecutive days. O.C.G.A. § 34‐9‐220. The day, or days, considered lost because of disability to work 

shall be counted from the first seven calendar days of disability even though the days may not be 

consecutive. 

2.1 Are there any “Pay without Prejudice” periods? No. 

2.2 


injury? 

The waiting period commences on the first day the employee is unable to work a full day as a result of 

his on‐the‐job injury. If the employee is paid in full for the date upon which the injury occurred, the 

waiting period begins on the next day following the day of the injury. Board Rule 220(a). 

2.3 



An employee is entitled to payment for the first seven days of disability once he has been disabled as a 

result of the on‐the‐job injury for twenty‐one consecutive days. O.C.G.A. § 34‐9‐220. 

2.4 When is the first TTD payment due? 

The first payment of income benefits shall be due on the 21st day after the employer has knowledge of 

injury or death. O.C.G.A. § 34‐9‐221(b). 

2.5 



O.C.G.A. § 34‐9‐240 provides: “If an employee refuses employment procured for him or her and suitable 

to his or her capacity, such employee shall not be entitled to any compensation, except PPD benefits, as 

long as such refusal continues or unless the State Board opines such refusal was justified.” An employer 

can show their employment opportunity is appropriately suitable to the claimant's work duty 

restrictions by getting written approval of the essential job duties by the authorized treating physician 

pursuant to a WC‐240a, executed by the authorized treating physician. See Board Rule 240. 

2.6 




Not applicable. 

3.0 




Income benefits shall be due and payable in weekly installments and are considered paid when due 

when mailed from within the State of Georgia to the address specified by the employee or the address 

on record with the State Board. For payments mailed from outside the state of Georgia, weekly 

payments will be considered paid when due no later than three days prior to the due date to the 

claimant's specified address or address on record with the State Board. O.C.G.A. § 34‐9‐221(b). 

3.1 

3.2 



Pursuant to O.C.G.A. § 34‐9‐261, the statutory cap for the payment of TTD benefits is 400 weeks, unless 

the claimant's injury is deemed catastrophic according to O.C.G.A. § 34‐9‐200.1. There is no statutory 

cap on catastrophic injury claims. 

Yes, global settlement of both medical and indemnity benefits is allowed. Stipulations and settlement 

Is global settlement of both medical & indemnity agreements must be approved by the State Board. Approval by the State Board constitutes complete 


and final disposition of the claim on account of the incident, injury or injuries referred to in the 

agreement. O.C.G.A. § 34‐9‐15.

3.3 




PPD ratings are determined by a schedule that lists various portions of the body and provides a certain 

number of weeks of disability benefits for which the claimant will be entitled for the total loss, or total 

loss of use, of each portion of the body in question. O.C.G.A. § 34‐9‐263(c). Impairment ratings for the 

neck, back or spine are required to be whole‐person impairment ratings, according to the American 

Medical Association's Guides to the Evaluation of Permanent Impairment, Fifth Edition. Ratings of 

course vary depending on the facts of each case. Generally, the estimated PPD rating for a neck or 

lumbar spine surgery, for instance a single‐level fusion, is 15%‐18% to the body as a whole. As for knee 

surgery, the schedule provides a maximum of 225 weeks of additional disability benefits. Common knee 

surgeries, like repair of the MCL or ACL, should be afforded no more than a 15% to the lower extremity. 

Shoulder injuries and resulting surgery are considered part of the upper extremity and are to be rated as 

such. Therefore, a claimant may be entitled to disability benefits up to an additional 225 weeks. 

Common shoulder surgeries, such as rotator cuff surgery, usually warrant no more than a 5 to 15% 

upper extremity rating. Of course, soft tissue injuries or fractures not requiring extensive surgical 

procedures to repair, usually warrant significantly lower impairment ratings. 

3.4 



Yes, a case may be settled before MMI is reached. 

3.5 



Yes, voluntary resignation can be obtained as part of the settlement agreement. 

3.6 





3.7 




There is no specific rule for such. 

3.8 Can indemnity checks be sent to the employer? No. Payment shall be made to the address of record or account specified by the claimant. 


4.0 



A claim for workers' compensation benefits, medical and/or indemnity, must be filed within one year of 

the alleged date of injury. If a payment of weekly benefits has been made or remedial treatment has 

been furnished by the employer on account of the injury, then a claim must be filed within one year 

after the date of the last remedial treatment, or two years after the date of the last payment of weekly 

benefits. O.C.G.A. § 34‐9‐82(a). 

4.1 




compensable? 

An injury sustained while a person is in training prior to the execution of a formal employment 

agreement will most likely be compensable. According to O.C.G.A. § 34‐9‐1, an “employee” includes 

every person in service of another under any contract of hire or apprenticeship except a person whose 

employment is not in the usual course of trade, business, occupation or profession of the employer. 

However, a written contract is not necessary, as an implied employer‐employee relationship is 

sufficient. There are two controlling factors in determining whether an employer‐employee relationship 

exists: 1) a person is in the service of another; and 2) a person is under any contract of hire or 

apprenticeship. Payment of wages or compensation is not dispositive as to whether an employeremployee 

relationship exists. 

4.2 


In Georgia, an injury is compensable if the claimant is able to show his injury “arose out of” and “in the 

indicate whether the test is AOE and COE, versus 

course of” his employment. 

AOE or COE. 

4.3 



According to O.C.G.A. § 34‐9‐221, the first payment of benefits is due within the first twenty‐one days 

following the alleged injury. If the employer controverts the claim, it must file a Notice to Controvert 

(State Board form WC‐3) with the State Board on or before the twenty‐first day after knowledge of the 

alleged injury or death. O.C.G.A. § 34‐9‐221(d). Further, where compensation is being paid without an 

award, a controvert may be filed within 81 days based on a change in condition or newly discovered 

evidence.

4.4 



The Georgia Workers' Compensation Act bars an employee's entitlement to workers' compensation benefits when 

the employee's injury or death is a result of the employee's willful misconduct. O.C.G.A. § 34‐9‐17(a). “Willful 

misconduct” includes conscious or intentional violations of definite laws or rules of conduct, as opposed to 

inadvertent or involuntary violations. See Liberty Mutual Ins. Co. v. Perry , 53 Ga. App. 527, 186 S.E. 576 (1936). 

False statements in an employment application will bar benefits if the following factors are present: 1) the 

employee must have knowingly and willfully made false representations as to his physical condition; 2) the 

employer must have relied upon the false representation and this reliance must have been a substantial factor in 

the hiring; and 3) there must have been a causal connection between the false representation and the injury. 

Georgia Electric Co. v. Rycroft , 259 Ga. 155, 378 S.E.2d 111 (1989). O.C.G.A. § 34‐9‐17 bars recovery of workers' 

compensation benefits if the employee's injury or death is caused by intoxication due to alcohol, marijuana or other 

controlled substances not legally prescribed by a physician or not taken in accordance with a prescription. A 

rebuttable presumption arises in favor of the employer that the death or injury was caused by the employee's 

ingestion of alcohol, marijuana or a controlled 

substance if: 1) .08 grams of alcohol is determined to be in the employee's body within three hours of the time of 

accident; or 2) any amount of marijuana or a controlled substance is found in the employee's body within eight 

hours of the time of accident. In addition, no compensation shall be allowed for an injury or death due to the 

refusal of the employee to perform a duty required by statute. O.C.G.A. § 34‐9‐17(a). An employee is barred from 

workers' compensation benefits for injuries resulting from his willful failure or refusal to use safety appliances, as 

long as the employee had knowledge of the requirement to utilize the safety device. Liberty Mutual Ins. Co. v. 

Perry , 53 Ga. App. 527, 186 S.E. 576 (1936); Herman v. Aetna Casualty & Surety Co. , 71 Ga. App. 464, 31 S.E.2d 100 

(1944). The burden is on the employer to show the following: 1) that the failure was willful; 2) that the device was 

available and accessible; 3) that the employee was aware of the necessity to utilize the safety appliance; 4) that the 

employee recognized the danger of not using the appliance; 5) that the willful failure to use the safety appliance 

was intentional and not merely inadvertent or in response to an emergency; and 6) that such failure was the 

proximate cause the employee's injuries. Id. 


Volunteers, or persons who perform a gratuitous service for another, are not employees or a servant of 

the person for whom the service is being performed. Therefore, usually volunteers are not entitled to 

workers' compensation benefits for injuries sustained while in the performance of such service. Jones v. 

Lumbermens Mut. Cas. Co. , 58 Ga. App. 713 199 S.E. 832 (1938). However, some exceptions apply to this 

rule. County or municipality volunteer firefighters, law enforcement personnel, volunteer emergency 

rescue workers and volunteer first responder workers are considered “employees” and entitled to 

workers' compensation benefits. O.C.G.A. § 34‐9‐1. 

4.6 

4.7 





Yes, illegal aliens are covered by the Workers' Compensation Act of Georgia. See Wet Walls, Inc. v. 

Ledezma , 266 Ga. App. 685, 598 S.E.2d 60 (2004) (holding a finding of fact of total disability for an illegal 

worker entitles the worker to continued TTD benefits); Continental PET Technologies v. Palacias , 269 

Ga. App. 561, 604 S.E.2d 627 (2004) (holding the broad definition of “employee” set forth in O.C.G.A. § 

34‐9‐1(2) includes “every person in the service of another under any contract of hire or apprenticeship,” 

including illegal aliens). 

Yes. O.C.G.A. § 34‐9‐1(2) states: “A person shall be an independent contractor and not an employee if 

such person has a written contract as an independent contractor and such person otherwise qualifies as 

an independent contractor.” There is plenty of case law dealing with the test to determine whether an 

employee is an independent contractor. 

4.8 



compensable? 

Cumulative traumas, or gradually acquired injuries, are compensable in Georgia. Where a disability 

results that is objectively physiologically ascertainable, it is compensable, although the onset of 

disability is not distinguishable day‐to‐day and there is no specific injury or accident. Thomas v. Ford 

Motor Co. , 123 Ga. App. 512, 181 S.E.2d 874 (1971). The date of accident with regards to a cumulative 

trauma is the date the injury prevents the claimant from going to work. See Employers Mut. Liab. Ins. 

Co. v. Shipman , 108 Ga. App. 184, 132 S.E.2d 568 (1963). A cumulative trauma injury may be established 

by providing evidence indicating an employee's injury was caused by and further aggravated by the 

performance of his work duties. See D.W. Adcock v. Adcock , 257 Ga. App. 700, 572 S.E.2d 45 (2002). 

4.9 




In Georgia, where a psychological or emotional stimulus on the job produces a physical injury, the injury 

is usually compensable. See City Council of Augusta v. Williams , 137 Ga. App. 177, 223 S.E.2d 227 (1976). 

In a 2008 decision from the Court of Appeals, the court ruled “In order for a psychological injury to be 

compensable, it must satisfy two conditions precedent: 1) it must arise out of an accident in which a 

compensable injury is sustained; and 2) while the physical injury may not be the precipitating cause of 

the psychological condition or problems, at a minimum, the physical injury must contribute to the 

continuation of the psychological trauma.” DeKalb County Bd. of Educ. v. Singleton , 294 Ga. App. 96, 668 

S.E.2d 767 (2008). Further, the court noted the psychic trauma is compensable if the physical injury 

merely contributes to its continuation. Id. 

4.10 



describe. 

Not applicable.

4.11 






Workers' compensation benefits can be denied if an injury is proximately caused by being under the 

influence of alcohol, marijuana or a controlled substance. O.C.G.A. § 34‐9‐17. For alcohol, if the amount 

of alcohol within three hours of the the alleged accident is .08 grams or greater, there is a rebuttable 

presumption the injury/death was caused by the consumption of alcohol. O.C.G.A. § 34‐9‐17(b)(1). 

Regarding marijuana or improper ingestion of a “controlled substance,” there is a rebuttable 

presumption the injury was caused by the use of the controlled substance or marijuana if any amount of 

such is shown to be in the employee's blood, urine, breath or other bodily substance within eight hours 

of the time of the alleged accident. O.C.G.A. § 34‐9‐17(b)(2). 

4.12 Compensability for Recreational Activities No compensability for recreational activities. 

5.0 What is the maximum statutory death benefit? 


Compensation shall only be paid out to dependents during their dependency. Therefore, when a child 

reaches 18 and is not enrolled in post‐secondary education, marries, or turns 22, their dependency has 

terminated, along with their entitlement to compensation. See O.C.G.A. § 34‐9‐265(c). However, in 

cases where the surviving spouse is the sole dependent at the time of death and no other dependent 

exists for one year or less after the decedent's death, current law is that total compensation shall not 

exceed $150,000. O.C.G.A. § 34‐9‐265(d). 

5.1 What is the allowance for burial expenses? 

5.2 


dependency. 

Currently, if the employee has no dependents at the time of his death, the employer/insurer is only 

responsible for the reasonable expenses of the employee’s burial, up to $7,500. O.C.G.A. § 34‐9‐ 

265(b)(1). 

There are two classes of dependents established by the Act: 1) “primary beneficiaries who were totally 

dependent on the decedent; and 2) “secondary beneficiaries” who were partially dependent on the 

decedent. O’Steen v. Florida Ins. Exch., 118 Ga. App. 562, 164 S.E.2d 512 (1953). Individuals who are 

wholly dependent upon the deceased employee’s earnings at the time of the injury are entitled to 

regular weekly indemnity benefits pursuant to O.C.G.A. § 34‐9‐261. Only a “child” of the deceased 

employee or, under certain circumstances, a surviving spouse of the same, is eligible for “primary 

beneficiary” status. Id. A wholly dependent beneficiary, i.e., a minor child, precludes a partially 

dependent beneficiary, like the child’s mother, from recovering even a portion of the decedent’s weekly 

benefits while he remains totally dependent. There is a presumption of total dependency for children of 

the decedent and the spouse of the decedents. O.C.G.A. § 34‐9‐13(b). Children of the decedents must be 

either: 1) under 18 years of age or enrolled full‐time in high school; 2) over 18 and physically or mentally 

incapable of earning a livelihood; or 3) under the age of 22 and a full‐time student or the equivalent in 

good standing enrolled in a post‐secondary institution of higher learning. For partial dependency, no 

such presumption exists, so the determination of partial dependency is determined based on the facts 

at the time of the decedent’s accident. Factors to consider include the amounts, frequency and 

continuity of actual contributions of money or supplies, 

the needs of the claimant and the legal and moral obligation of the employee. O.C.G.A. § 34‐9‐13(d). A 

dependent cannot change from a partial dependent to a total dependent, or vice versa, because 

dependency status is determined at the time of the accident. Spousal dependency may be terminated, 

however, by cohabitation in a meretricious relationship. O.C.G.A. § 34‐9‐13(e). 

5.3 



Employer/insurer is obligated to pay the State Board either: 1) one‐half of the dependency benefits that 

would have been payable to a dependent; or 2) $10,000, whichever is less. O.C.G.A. § 34‐9‐358(a). These 

funds will be deposited into a general fund of the state treasury. O.C.G.A. § 34‐9‐265(f). If a dependent 

who would be entitled to benefits is discovered after the employer/insurer has made the 

aforementioned payments, the insurer or self‐insurer will be entitled to reimbursement. Id. 

5.4 



describe. 


6.0 

6.1 


jurisdiction? 




Vocational rehabilitation is compulsory for those individuals who have sustained compensable 

“catastrophic injuries.” Providing vocational rehabilitation for non‐catastrophic injuries is voluntary. 

O.C.G.A. § 34‐9‐200.1. 

Generally, in non‐catastrophic cases, vocational rehabilitation is provided to claimants who have no 

suitable employment, but the State Board has the discretion to award vocational rehabilitation services 

even to claimants who have suitable employment opportunities available to them. See Jackson v. 

Peachtree Hous. Div. of C.O. Smith Indus. , 187 Ga. App. 612, 371 S.E.2d 112 (1988). Those with 

compensable catastrophic injuries must be provided vocational rehabilitation services. O.C.G.A. § 34‐9‐ 

200.1.

6.2 

6.3 

Rehabilitation services includes goods and services necessary for vocational assessment, vocational 

evaluation, guidance, counseling, vocational planning, vocational training and vocational placement. In 


addition, providing home or vehicle modifications, training or self‐employment arrangements is 

vocational rehabilitation? Are these provided by 

considered “rehabilitation benefits.” See Ranger Ins. Co. v. Speck , 145 Ga. App. 327, 243 S.E.2d 593 


(1978); Georgia State Bd. of Workers' Compensation, Procedures Manual (July 2001). These benefits are 

provided by the carrier. 

If the employee who is out of work completely is terminated before being returned to work by his 

authorized treating physician, he will remain entitled to his weekly TTD benefits. If the employee has 

been returned to work at light duty and terminated for cause, he has the burden to prove he has 

What is the exposure for terminating an performed a diligent, but unsuccessful, job search and is unable to find gainful employment as a result 

employee before they reach RTW or reach MMI? of his on‐the‐job injury. Upon sufficient showing of a diligent but unsuccessful job search, the claimant 

will be entitled to TTD benefits. Maloney v. Gordon Farms , 265 Ga. 825, 462 S.E.2d 606 (1995). If the 

claimant is returned to work at light duty and then terminated due to the employer having no work 

suited to his restrictions, the claimant will be entitled to TTD benefits. 


7.0 


which are eligible for a second injury fund 

recovery. 

The Subsequent Injury Trust Fund shall not reimburse a self‐insured employer or an insurer for a 

subsequent injury for which a claim is made for an injury occurring after June 30, 2006. Reimbursement 

is still available for qualifying claims for injuries occurring on or prior to June 30, 2006. O.C.G.A. § 34‐9‐ 

368(a). A licensed workers' compensation insurance carrier or an approved self‐insurer is eligible for 

reimbursement as long as: 1) the employee has a preexisting permanent impairment; 2) the employer 

had knowledge of the preexisting permanent impairment before the subsequent injury occurred; 3) a 

compensable, subsequent on‐the‐job injury has occurred; and 4) there is a “merger” between the 

preexisting permanent impairment and the subsequent compensable on‐the‐job injury. O.C.G.A. § 34‐9‐ 

350. The employer/insurer is entitled to 50% reimbursement of all medical and rehabilitation expenses 

paid which exceed $5,000, but do not exceed $10,000. The employer/insurer is entitled to 100% 

reimbursement of all medical and rehabilitation expenses paid which exceed $10,000. O.C.G.A. § 34‐9‐ 

360(b). Further, the employer/insurer shall be reimbursed from the Subsequent Injury Trust Fund for all 

weekly income benefits payments payable after 104 weeks of payment. O.C.G.A. § 34‐9‐360(a). 

7.1 



O.C.G.A. § 34‐9‐11.1(b) provides for a subrogation lien in favor of the employer/insurer against the 

recovery from a third‐party tortfeasor. The employer/insurer has the right to intervene in any action to 

enforce the lien. Should the employee not file his right of action within one year of the date of injury, 

then the employer/insurer has the right for the following year to enforce the claim in the name of the 

employee. If the employer/insurer make such a filing, then the employee has a right to intervene. 

7.2 

If an employee has a right of action against a third party and the employer's liability under this has been 

fully or partially paid, the employer/insurer shall have a subrogation lien for an amount up to the 

Describe the statute regarding our right to amount of compensation the employer/insurer paid against such recovery. O.C.G.A. § 34‐9‐11.1(b). If an 

pursue a subrogation recovery. Does the statute employee has settled his personal injury suit against a third‐party tortfeasor without filing suit, and the 

give preference to our lien when a third party tortfeasor had no knowledge of the workers' compensation claim, the employer may not have any right 


against the tortfeasor to bring suit, but retains the employer's lien on recovery. Rowland v. Department 

of Admin. Servs., 219 Ga. App. 899, 466 S.E.2d 923 (1996). The employer may bring suit against a thirdparty 

tortfeasor if the employee has not brought suit within one year after the date of injury. 

7.3 

7.4 






An employer may recover up to the amount paid out in compensation, and the excess of the award will 

be paid to the injured employee. O.C.G.A. § 34‐9‐11.1. However, the statute requires that the employee 

first be fully and completely compensated for all economic and non‐economic loses caused by the 

injury. 



8.0 



According to O.C.G.A. § 34‐9‐200, the employer/insurer are required to provide an employee with a 

compensable injury “such medical, surgical, and hospital care and other treatment, items, and services 

which are prescribed by a licensed physician, including medical and surgical supplies, artificial members, 

and prosthetic devices and aids damaged or destroyed in a compensable accident, which in the 

judgment of the State Board of Workers' Compensation shall be reasonably required and appear likely 

to effect a cure, give relief, or restore the employee to suitable employment.”

8.1 

Upon the request of the employer/insurer, an employee is required to submit himself to an examination 

by a duly qualified physician/surgeon of the employer/insurer's choosing, who will be paid by the 

employer/insurer or the State Board, as long as the employee claims workers' compensation benefits. 

O.C.G.A. § 34‐9‐202(a). This examination must be at a reasonable time and place. In addition, an 


employee is entitled to one IME at a reasonable time and place by a duly qualified physician/surgeon of 


the employee's choosing, who is to be paid by the employer. This right must be exercised within 120 


days of receipt of any income benefits and must be in the state of Georgia or within 50 miles of the 

employee's residence, at a reasonable time and place. O.C.G.A. § 34‐9‐202(e). An employee‐requested 

IME does not require authorization by a judge. The employee has no right to an IME at the employer’s 

expense in a “medical only” claim. 

8.2 




No. 

8.3 





8.4 IME Generalized Rules See 8.1 


9.0 Extraterritorial Coverage 


When an employee has submitted a claim for workers' compensation benefits or is receiving payment of 

weekly income benefits or the employer has paid medical expenses, that employee shall be deemed to 

have waived any privilege or confidentiality concerning any communications related to the claim or 

history or treatment of an injury arising from the incident that the employee has had with any physician, 

including, but not limited to, communications with psychiatrists or psychologists. 


Jurisdiction of the board over accidents occurring outside the state is controlled by O.C.G.A.§ 34‐9‐242, 

which reads, in part: "In the event an accident occurs while the employee is employed elsewhere than in 

this state, which accident would entitle him or his dependents to compensation if it had occurred in this 

state, the employee...shall be entitled to compensation if the contract of employment was made in this 

state and if the employer's place of business or the residence of the employee was expressly for service 

exclusively outside of this state." 

http://www.swiftcurrie.com 

http://sbwc.georgia.gov/portal/site/SBWC/ 

9.2 Sole Remedy Yes. 

9.3 Does the jurisdiction allow medical discovery? Yes. 

9.4 Adjuster residency requirement? No. 

9.5 



No, as the exclusive remedy precludes this cause of action but attorney fees can be assessed.

KENTUCKY 


These Jurisdictional Help Screens are for informational purposes only. They should not be construed as a definitive synopsis of any State's laws, 

rules, or procedures. You should contact your legal counsel or Human Resources Department prior to the development of any internal policy, 

procedure or work rule. 


1.0 


Wage most favorable to the employee computed by dividing by 13, the wages the employee earned in 

information regarding the earning types used to 

the first, second, third, or fourth period of 13 consecutive calendar weeks in the 52 weeks 

derive the AWW (i.e.: regular wages, tips, 

immediately preceding the injury. 



66 2/3% of the employee's average weekly wage subject to the maximum and minimum rates for the 

year of injury. 

1.2 Maximum weekly TTD rate $721.97 

1.3 Minimum weekly TTD rate $144.40 

1.4 


whether your state uses a 7‐day work week, a 5‐ Weekly TTD rate / 7 = daily temporary total disability rate 


1.5 

1.6 





how much? 



these? 

No 

Unscheduled 

1.7 Maximum weekly PPD rate $541.47 

1.8 Minimum weekly PPD rate None 

1.9 




rule. 

No 

1.10 



Administrative Law Judge 

1.11 



describe. 

Concurrent employment; seasonal employees 


Temporary total disability benefits or permanent total disability benefits are offset by unemployment 

compensation benefits and exclusively funded employer disability plan that does not contain internal 

offset for workers' compensation benefits. 

1.13 Cost of Living Adjustment No

2.0 




days. 


Seven (7) calendar days 

2.1 Are there any “Pay without Prejudice” periods? No 

2.2 


injury? 

Only if not paid wages for day of injury. 

2.3 



15 days 

2.4 When is the first TTD payment due? 8th day 

2.5 



Yes, if temporary total disability benefits are being voluntarily paid. 

2.6 




Forms must be filed with Department of Workers' Claims when benefit payments are initiated and/or 

terminated. 


3.0 



Semi‐monthly 

3.1 



No, except if temporary total disability is paid after the worker reaches "normal" old‐age retirement. 

3.2 


Yes, with approval of Administrative Law Judge. 


3.3 




Functional impairment ratings found in 5th Edition of American Medical Association Guidelines to 

Evaluation of Permanent Impairment . 

3.4 



Yes, if both parties are agreeable and approved by the Administrative Law Judge. 

3.5 



No 

3.6 




Income benefits terminate when worker reaches "normal" old‐age retirement except if injury occurs 

after such age. 

3.7 




None 

3.8 Can indemnity checks be sent to the employer? Yes, with consent of employee. 

Topics Related to Compensability

4.0 



Two years from date of injury or two years from last voluntary payment of temporary total disability 

benefits, which ever occurs last. 

4.1 

4.2 




compensable? 

Yes 


indicate whether the test is AOE and COE, versus Injury must arise out of and in the course of employment. 

AOE or COE. 

4.3 



No specific deadline unless there is a request for payment of medical expenses and/or preauthorization 

for medical treatment. 

4.4 



Statute of Limitations, unreasonable failure to follow medical advice, failure to comply with safety 

laws, false statement on employment application, voluntary rejection of Act, voluntary intoxication or 

self infliction of injury, and refusal to accept rehabilitation services. 

4.5 Are volunteer workers covered? Yes. If a fireman, police officer, EMS worker or member of National Guard. 

4.6 


Yes. 


4.7 



Not covered under Act. 

4.8 



compensable? 

Yes, if cumulative trauma arises out of and in the course of employment. 

4.9 




Only if associated with physical injury. 

4.10 


compensability for this jurisdiction? If so, please No 

describe. 

4.11 






Yes, if intoxication was proximate cause of injury. 

4.12 Compensability for Recreational Activities Yes, if company sponsored and/or attendance is mandatory. 



$70,916.46 and weekly benefit payments to dependents of one‐half of the deceased workers' rate up 

until spouse reaches age 62. 

5.1 What is the allowance for burial expenses? Included in $70,916.46 lump sum death payment. 

5.2 


dependency. 

Spouse remains a dependent until such time as she remarries. Children are dependents up until age 

18 or, if in school, up to age 23. 

5.3 



$70,916.46 lump sum death payment would be payable to deceased workers' estate.

5.4 



describe. 

No 


6.0 


jurisdiction? 

No, unless ordered by Administrative Law Judge. 

6.1 



Worker cannot return to regular employment for which he has previous training and/or experience. 

6.2 


Job retraining and/or job placement not to exceed 52 weeks and increase in weekly income disability 


benefits paid to the worker. All rehabilitation expenses and/or benefits are paid by the employer. 


6.3 

Temporary total disability benefits can be awarded by the Administrative Law Judge until the worker 


reaches maximum medical improvement or returns to work. Unfair Claims Settlement Practices 


Complaint can be filed with the Commissioner of the Department of Workers' Claims. 


7.0 


which are eligible for a second injury fund No second injury fund for injuries occurring after December 1996. 

recovery. 

7.1 



Five years from date of injury. 

7.2 


pursue a subrogation recovery. Does the statute Right to pursue subrogation recovery is the responsibility of the employer. No preference is given to 

give preference to our lien when a third party workers' compensation claim. 


7.3 



Can recover only from amount of settlement or award after deduction of legal fee and expenses, pain 

and suffering, and after the worker has been made "whole." 

7.4 

8.0 






Subrogation recoveries are rare in Kentucky Workers' Compensation claims. 


Unless employer has a managed care program approved by the Department of Workers' Claims, 

worker has sole discretion to chose first two doctors for treatment. Selection of a third physician for 

treatment must be approved by employer. 

8.1 


an Independent Medical Exam? Does an IME No, as long as "reasonable" and does not need approval of Administrative Law Judge. 


8.2 




No 

8.3 




There are medical, hospital and pharmacy fee schedules. 

8.4 IME Generalized Rules None 

8.5 Medical Privacy Rules Need signed release for medical records. 

Miscellaneous Topics

9.0 Extraterritorial Coverage Yes 


(1) If worker's employment is principally localized in Kentucky or; (2) worker is working under a 

contract of hire made in this state in employment not principally localized in any state or; (3) worker is 

working under a contract of hire made in this state in employment principally localized in another 

state whose workers' compensation law is not applicable to his employer or; (4) worker is working 

under a contract of hire made in this state for employment outside the United States and Canada. 

9.2 Sole Remedy 

Exclusive remedy except if employer has failed to secure payment of workers' compensation coverage 

as required by Act or where injury or death is proximately caused by the willful intention of the 

employer. Exclusive remedy is slowly but surely being eroded by the Courts. 


9.4 Adjuster residency requirement? Adjuster must be licensed in Kentucky. 

9.5 



None available but worker can bring Unfair Claims Practices Action before Commissioner or 

Department of Workers' Claims who has authority to impose fines on employer and/or insurance 

carrier.

LOUISIANA 




work rule. 


1.0 

Sect. 1021(12) hourly workers: average of 4 full weeks prior to accident; commission or unit workers: 


average of 26 weeks prior to accident; salary workers convert to weekly; include OT if earned in 4 weeks 


prior to accident; separate tips from hourly wages and add average of tips for 26 weeks to 4 week 


average of hourly wages; full‐time hourly workers entitled to 40 hour average minimum if average drops 


below 40 hour due to no fault of worker; only taxable wages included in calculations. 

1.1 How is the weekly TTD rate calculated? 2/3rds of AWW 

1.2 Maximum weekly TTD rate 

1.3 Minimum weekly TTD rate 

Determined as of date of accident; Updated September 1 each year and set at 75% of statewide AWW; 

9/01/11 to 8/31/12: $592.00 

Determined as of date of accident; Updated September 1 each year and set at 20% of statewide AWW; 

9/01/11 to 8/31/12: $158.00 

1.4 

1.5 


whether your state uses a 7 day work week, a 5 






how much? 

Weekly divided by 7 

Employee may be terminated while receiving comp benefits. Employer can terminate health benefits 

subject to COBRA with no change in TTD rate, assuming that health benefits were not taxable. 

1.6 



these? 

LA is predominantly a wage loss state. Worker receives the higher of wage loss or scheduled PPD, which 

is usually wage loss. 

1.7 Maximum weekly PPD rate Same as TTD. 

1.8 Minimum weekly PPD rate Same as TTD. 

1.9 




rule. 

Payment is due within 30 days of permanency being established and PPI rating assigned under AMA 

guidelines by doctor. 

1.10 



Judge has final say to determine rating under AMA guidelines. 

1.11 



describe. 

Louisana is predominantly a wage loss state. Employer must pay SEB at full TTD rate until they establish 

wage earning capacity through vocational rehabilitation of available and appropriate employment. 

Must pay 2/3rds of difference between AWW and established earning capacity for all wage loss greater 

than 10%. 


May offset SSDI if paying PTD; Credits for private disability (to extent funded by an employer), other WC, 

unemployment benefits. No indemnity benefits owed while claimant is incarcerated. 

1.13 Cost of Living Adjustment None. 

Topics Related to Initial Indemnity Payments

2.0 




days. 

Waiting period is 7 calendar days. 

2.1 Are there any “Pay without Prejudice” periods? All payments are without admission of liability unless they are pursuant to a judgment. 

2.2 


injury? 

No. 

2.3 



Beginning on 8/1/12, once the worker misses 6 weeks of work, the first week is compensable. 

2.4 When is the first TTD payment due? Within 14 days of knowledge of disability. 

2.5 



Yes, as long as the position is approved by, or fits within the restrictions of, the doctor and pays at least 

90% of AWW. Case by case basis. 

2.6 




None. 


3.0 



Required to be paid as frequently as paychecks, not to exceed monthly. 

3.1 



No caps on TTD, but limited to 520 weeks for SEB. 

3.2 


Yes, subject to approval by judge. 


3.3 




None. 

3.4 



Yes, subject to approval by judge, in the bests interests of worker. 

3.5 



A voluntary resignation may be obtained at same time, but as separate agreement. 

3.6 




None. 

3.7 




Employer gets credit for salary continuation paid in lieu of compensation and is entitled to 

reimbursement from carrier for each week paid, not to exceed compensation rate. 

3.8 Can indemnity checks be sent to the employer? Only as credit for above. 


4.0 



Indemnity: 1 year from date of accident, or 1 year from date disability first develops, but not to exceed 2 

years from date of accident if no benefits have been paid. If benefits have been paid, must file suit 

within 1 year of last payment of benefits for TTD, PPD or PTD, and within 3 years of last payment for SEB.

4.1 

4.2 




compensable? 

Injured while training is generally compensable, but injured while testing is generally not. 


indicate whether the test is AOE and COE, versus Test is AOE and COE, but a strong showing in one may make up for a weak showing in the other. 

AOE or COE. 

4.3 



Must make decision within 14 days of knowledge of disability or be subject to penalties. 

4.4 



Intoxication and drug use with strong presumptions of intoxication and causation. Other affirmative 

defenses include willful intention to injure himself or another, or if worker is the physical aggressor in 

unprovoked physical altercation. If claimant commits fraud, he is subject to forfeiting entire claim. 

4.5 Are volunteer workers covered? Yes, but only for medical benefits. 

4.6 


Yes. 


4.7 

4.8 





compensable? 

If independent contractor (IC) spends a substantial part of work time performing manual labor, he is 

considered an employee of principal and covered under the Act. (This rule does not apply to an "owner 

operator" in trucking field.) If IC is sole proprietor who opts out of coverage, then IC owes indemnity to 

principal for any benefits paid by principal. 

Carpal tunnel treated as occupational disease. All other cumulative trauma claims are disallowed unless 

claimant can prove the occurrence of an actual, identifiable, precipitous event which directly produces 

objective findings of an injury which is more than a gradual deterioration or progressive degeneration. 

4.9 

4.10 




Mental/mental claims are compensable if stress is sudden, unexpected and extraordinary, related to 

work, proven by clear and convincing evidence. Diagnosis must be by licensed psychiatrist or 

psychologist under criteria of DSM. Physical/mental claims also require clear and convincing evidence 

by psychiatrist or psychologist under criteria of DSM. 

Heart attack and stroke claims limited to physical work stress which is extraordinary and unusual in 


comparison to stress or exertion experienced by average employee in that occupation. The physical 


work stress, and not some other stress or pre‐existing condition, must be the predominant cause of 

describe. 

injury. 

4.11 






Claimant is presumed to be intoxicated and benefits can be denied if BAC is .08 or higher. Need 

confirmatory test. May also use other evidence of intoxication, but no presumption would apply. Can 

only compel testing if employer has a written and promulgated drug policy. Must pay for emergency 

medical benefits before terminating. 


May be compensable if employer encouraged participation or derived enough benefit from the worker's 

participation. 


5.0 What is the maximum statutory death benefit? 65% of AWW, not to exceed max TTD rate. 

5.1 What is the allowance for burial expenses? Beginning on 8/1/12, the allowance will be raised to $8,500. 

5.2 


dependency. 

Must be dependent upon deceased worker at time of accident and at time of death. 

5.3 



If there are no actual dependents, then each surviving parent receives a lump sum of $75,000. If there 

are no surviving parents, then no payments are due. 

5.4 



describe. 

None. 

Topics Related to Vocational Rehabilitation

6.0 


jurisdiction? 

Yes. It is considered a benefit owed to the injured worker. 

6.1 



If the injured worker has any work restrictions resulting in a wage loss, he is entitled to vocational 

services. 

6.2 


vocational rehabilitation? Are these provided by The carrier provides for job assessment and job placement services. 


6.3 

An employer may terminate the employment of an injured worker at any time, as long as it is not for an 


improper reason. The employer will owe wage loss benefits until it can prove appropriate alternative 


employment currently available to the worker. 


7.0 



recovery. 

Employer must have prior knowledge of a pre‐existing permanent partial disability. Employer must 

prove merger between the pre‐existing condition and subsequent job accident. This can be proven by 

showing accident would not have occurred but for the pre‐existing condition, or that subsequent injury 

is worse due to pre‐existing condition. A claim for SIF relief must be filed within 1 year of 1 first 

payment. 

7.1 

7.2 



Employer/carrier has 1 year from date of accident to file subrogation suit. If employee files a tort suit 

against third party, employer may intervene at any time prior to trial. 


pursue a subrogation recovery. Does the statute Sec. 1101‐03 gives employer's/carrier's lien preference over employee's recovery. Third party cannot 

give preference to our lien when a third party settle out around intervening employer without liability for full lien. 


7.3 



Employer's/carrier's lien reduced for comparative fault in same proportion as employee's recovery. 

Employer must contribute up to 33% of its recovery to employee's attorney as Moody fees. 

7.4 

8.0 






Employer must intervene into employee's lawsuit to avail itself of all lien protections. 


Employee has choice of physician. Employer may compel an SMO exam. Either party may request an 

OWC appointed IME. Employee must receive prior approval from employer for any medical treatment. 

Employer subject to penalties for any arbitrary refusal to authorize medical treatment. Medical 

expenses are capped at fee schedule. There is mandatory utilization review and all treatment must 

comply with the OWC Medical Treatment Guidelines. 

8.1 

Are there restrictions regarding the scheduling of Employer is entitled to compel an SMO exam by a doctor of their choice from time to time as 

an Independent Medical Exam? Does an IME reasonable. If there is a dispute between treating doctor and SMO doctor, either side may request the 


OWC to appoint an IME. 

8.2 




Employer may reveal surveillance to doctor, but in doing so, the surveillance loses any protections 

against discovery. 

8.3 




Use of PPO agreements have been highly litigated and expose the employer/carrier to high end liability 

for penatlies. 

8.4 IME Generalized Rules Any SMO exam should include an actual exam and not be limited to records review. 


Once an employee makes his physical condition an issue, the employer is entitled to discovery of all 

prior conditions of employee. This information must be kept confidential and all rules of HIPAA apply. 



Accidents occurring out of state are covered under Louisiana law if the employee's employment is 

principally localized in Louisiana, or is working under a contract of hire made in Louisiana. If worker 

collected under another state's benefits first, employer is entitled to a credit for these benefits.


http://www.wcdefense.com/ 

http://www.laworks.net/ 


The employee's exclusive remedy against his employer for injuries on the job is workers' compensation 

benefits. The one exception is if the injury is caused by the intentional act of employer. 

9.3 Does the jurisdiction allow medical discovery? Yes. 

9.4 Adjuster residency requirement? No adjuster residency requirements yet. Louisiana does not require licenses for adjusters. 

9.5 



No Bad Faith action, but employee is entitled to penalties, up to $8,000 per hearing for any actions 

deemed arbitrary or capricious, or for the denial of any benefits without a reasonable basis. Also 

entitled to payment of attorney fees.

MISSISSIPPI 


These Jurisdictional Help Screens are for informational purposes only. They should not be construed as a definitive synopsis of any State's laws, 

rules, or procedures. You should contact your legal counsel or Human Resources Department prior to the development of any internal policy, 

procedure or work rule. 


1.0 


Obtain wage statement for last 52 weeks. Includes money rate plus reasonable value of board, rent, housing, 


lodging or similar advantage received from employer plus tips & gratuities. Include overtime earnings & 


regularly recurring bonuses. 


1.1 How is the weekly TTD rate calculated? 66‐2/3% of the average weekly wage 

1.2 Maximum weekly TTD rate $436.68 (for injuries 1‐1‐12 – 12‐31‐12) 

1.3 Minimum weekly TTD rate $25.00 (Note: No minimum for temporary partial disability benefits) 

1.4 


whether your state uses a 7‐day work week, a 5‐ 5 day work week 


1.5 





how much? 

No. Our law does not include a requirement to continue health insurance premiums. Not paying the premium 

has no effect on TTD. 

1.6 



these? 

A combination is used. Things like hands, arms, legs, feet, fingers, etc. are scheduled. Injuries not scheduled are 

paid based on an analysis of loss of wage earning capacity. 

1.7 Maximum weekly PPD rate $436.68 (for injuries 1‐1‐12 – 12‐31‐12) 

1.8 Minimum weekly PPD rate Not applicable. (No minimum is applicable for partial disability) 

1.9 




rule. 

Paid immediately following the injured employee’s maximum medical recovery. In scheduled member cases, 

you owe the rating at a minimum. 

1.10 



Medical rating comes from the doctor; the award as to what the rating means as to the amount due comes from 

the MWCC Administrative Judge. 

1.11 



describe. 

Permanent disability benefits for non‐scheduled injuries are based on permanent loss of wage earning capacity; 

for scheduled members, it is based on the industrial loss of use, a very similar concept. Both take into 

consideration how the injury has affected the ability to earn wages. If the injured employee returns to the same 

or higher rate of pay, there is a rebuttable presumption that there is no permanent loss of wage earning capacity 

and no entitlement to a permanent aware. There are many subjective components to consider (such as 

claimant’s age, education, transferrable skills, post injury earnings, etc.)

1.12 Benefit Offset N/A 

1.13 Cost of Living Adjustment N/A 


2.0 




days. 

The first 5 calendar days of disability, which disappears after 14 days lost time. They do have to be consecutive 

days. 

2.1 Are there any “Pay without Prejudice” periods? No. Payments do not constitute an admission of liability. 

2.2 


injury? 

If the employee was not paid full wages for that day. 

2.3 



After 14 days of disability 

2.4 When is the first TTD payment due? After 14 days of disability 

2.5 



Generally, yes. Establish that the job available is the light duty job the doctor envisioned, that it was tendered to 

the claimant, and that the claimant refused offer. 

2.6 




File B‐52, Notice of Controversion, if payments are not going to be made within 14 days of employer’s notice of 

injury to avoid penalties. 


3.0 



Bi‐weekly (but can be paid weekly) 

3.1 



450‐week maximum 

3.2 

Is global settlement of both medical & 

indemnity allowed? Under what conditions? 

Yes. Where agreed by parties and approved by Mississippi Workers’ Compensation Commission. 

3.3 




We follow the “latest version” of the AMA Guidelines to the Evaluation of Permanent Impairment in establishing 

ratings (6th edition is the current one). Awards vary too much based on the subjective factors to be considered 

to give potential values. Consider the claimant’s age, education, training, transferrable skills, post injury earnings 

in comparison to pre‐injury AWW, efforts to work, rating and restrictions flowing from the rating. Two to three 

times the medical impairment rating is often used as a “benchmark,” but that is not the only possible result. 

3.4 



It is possible when the parties agree; it is rarely advisable because the settlement could be subject to a later 

challenge and effort to reopen. 

3.5 



The MWCC takes no jurisdiction over such issues, but there are ways to accomplish it and the resignation issues 

must be handled very carefully. 

3.6 




Not applicable.

3.7 




There are no specific rules or procedures, but statutorily compensation is to be paid directly to the claimant. 

Some employers will continue salary in lieu of compensation and then deduct WC benefits paid by a carrier from 

the net salary paid to the claimant. The employer may NOT generally apply accrued sick or non‐industrial 

disability leave as if it were salary continuation benefits in lieu of receiving WC benefits; however, if the disability 

benefits are provided by an employer funded plan and HR procedures clearly indicate that such is the 

established procedure, it might be possible to take credit for those paid benefits against WC liability. 

3.8 Can indemnity checks be sent to the employer? Mailing is the employee’s choice and that can be done with the approval of the claimant. 


4.0 



Employee has 2 years from the accident to file an application for WC benefits on claims where no indemnity 

benefits are paid. Where indemnity benefits are paid, there is a 1‐year statute of limitations from the filing of 

the B‐31 (the final form showing all payments which were made). 

4.1 




compensable? 

Probably so. 

4.2 


AOE and COE, with a trend towards finding compensability by viewing the 2 requirements together so that it is 


compensable if the AOE is great and the COE is small or vice versa. 

AOE or COE. 

4.3 



Decision should be made by the 14th day of disability, but failure to do so is not an automatic admission of 

compensability. 

4.4 



Statute of limitations; going & coming to and from work not usually compensable but many exceptions; 

intoxication; willful intent to injure (but horseplay is compensable and personal fights could be if the subject of 

the fight is business‐related); intervening cause of disability. 

4.5 Are volunteer workers covered? Not usually, but it is possible. 

4.6 

Are illegal aliens covered? If not, what is 

needed to support denial? 

Yes. 

4.7 



Excluded from Act. Primary test in ascertaining this status is whether the employer has a “right of control” over 

the details of the person’s work; if unclear, look to relative nature of the work test. 

4.8 



compensable? 

Yes, if the job being performed is a direct cause or aggravating cause of the condition. 

4.9 




Definitely compensable if a direct result of a physical injury. Mental/mental more difficult to prove; burden of 

proof is on the employee by clear and convincing evidence. Must prove an “untoward event” and stress more 

than the ordinary incidents of employment. 

4.10 

Are there any other critical issues related to Heart attack and stroke cases are easy to prove. The job does not have to be the only cause of either. It is 

compensability for this jurisdiction? If so, please compensable if the job aggravates, accelerates, exacerbates, contributes to, or lightens up the pre‐existing 

describe. 

condition. 

4.11 






Intoxication is a defense but burden of proof is on the employer and is very high. No statutory levels are listed in 

the law. Must prove that (1) employer had drug free work place policy in effect (2) reasonable suspicion of 

intoxication as a cause; (3) the fact of intoxication (via toxicologist); (4) that the intoxication was the sole 

proximate cause of the accident (not just a contributing cause). For injuries after 7‐1‐12, the law is completely rerewritten 

with intoxication being presumed with a positive test and the burden is on claimant to disprove. 

4.12 Compensability for Recreational Activities These are usually compensable if the employer gets any benefit out of the recreational activity.


5.0 What is the maximum statutory death benefit? 450 weeks; same weekly maximum as TTD 

5.1 What is the allowance for burial expenses? $2,000 funeral allowance; however, for injuries after 7‐1‐12, the funeral allowance is $5,000. 

5.2 


dependency. 

Surviving spouse and minor children conclusively presumed dependent. Children paid to age 18 unless full‐time 

student, then up to 23. 

5.3 



Second Injury Fund payment of $500.00. 

5.4 



describe. 

Second Injury Fund payment of $300 must be made even if there are eligible dependents. 

Surviving spouse gets a $250 lump sum payment immediately; for injuries after 7‐1‐12, the payment is $1,000. 


6.0 


jurisdiction? 

No 

6.1 



No clear cut examples. VR counselors are primarily used by employer/carrier in evaluating loss of wage earning 

capacity and/or industrial loss of use in PPD. No express authority under the Act which requires claimant to be 

interviewed or meet with the vocational expert. Can use opinion even if claimant refuses to cooperate. 

6.2 

Generally, what types of benefits are paid for At the discretion of the Commission, claimant may receive additional compensation if directed by the 

vocational rehabilitation? Are these provided by Commission to undergo vocational rehab. Such payment may not exceed $10.00 per week for more than 52 


weeks. For injuries after 7‐1‐12, the amount is $25 per week. 

6.3 

What is the exposure for terminating an No wrongful termination cause of action currently exists, but the refusal of an employer to rehire sets up a 

employee before they reach RTW or reach MMI? presumption for total disability. 


7.0 



recovery. 

When employee has previously lost (or lost use of) a hand, arm, foot, leg, or eye and loses in your accident 

another hand, arm, foot, leg or eye, he is PTD by definition. You owe your TTD, medical expense, and your 

scheduled member, and the MWCC Second Injury Fund owes the balance of PTD (450 weeks). 

7.1 



3 years for a Tort and 1 year for an intentional Tort. 

7.2 


pursue a subrogation recovery. Does the statute We have a right of recovery. The costs of collection (including claimant’s attorney fees) are first paid; 

give preference to our lien when a third party employer/carrier’s lien is paid next; and if anything is left over, it goes to the claimant. 


7.3 



See above. If there is an inadequate recovery, or liability is disputed, etc., recovery amounts are often 

negotiated and compromised. 

7.4 





Topics Related to Medical Control

8.0 



Employee has the right to choose the medical provider. Employer is supposed to tender treatment and 

claimant’s option is to accept that tender or choose his own. If pinned down in writing, claimant is not supposed 

to be able to choose another unless authorized by the MWCC. You owe for the chosen physician and referrals by 

him to one specialist in as many specialties as are necessary for proper treatment. For injuries after 7‐1‐12, 

treatment by a physician for 6 months or longer or undergoing surgery by the physician makes that physician 

claimant’s choice. 

8.1 

Are there restrictions regarding the scheduling 

of an Independent Medical Exam? Does an IME 


Employer can obtain an examination by a physician of its choosing. It is called an EME (Employer’s Medical 

Exam). You make the appointment, notify the claimant and the MWCC in writing of the appointment details, 

and prepay claimant’s mileage expense to the appointment. The claimant is entitled to a copy of the report. If 

treating doctor and EME doctor are in disagreement, it is possible to get the MWCC to order claimant to go to an 

Independent Medical Exam (IME). 

8.2 




In controverted cases, you cannot have ex parte (or one‐sided) communications with the treating physicians. 

You could not therefore send video to the doctor or ask him about the case without also copying opposing 

counsel. 

8.3 




There is a Mississippi Workers’ Compensation Fee Schedule that is applicable. It includes many rules and details 

extending far beyond just pricing issues. As an example, chiropractic treatment is limited to 15 visits or 30 days 

unless more is specifically authorized by the carrier. 


Employer can obtain an examination by a physician of its choosing. It is called an EME (Employer’s Medical 

Exam). You make the appointment, notify the claimant and the MWCC in writing of the appointment details, 

and prepay claimant’s mileage expense to the appointment. The claimant is entitled to a copy of the report. If 

treating doctor and EME doctor are in disagreement, it is possible to get the MWCC to order claimant to go to an 

Independent Medical Exam (IME). 


In controverted cases, the employer/carrier cannot have any ex parte or one sided communications with any 

treating physicians. 



A Mississippi employee who is temporarily assigned to work outside the State for less than 6 months remains a 

Mississippi employee for WC purposes even if injured in the other State. 



WC is the exclusive remedy, but there are a growing number of exceptions. If the cause of action is one for 

which the WC Act does not provide a remedy, exclusive remedy does not apply. If the employer intended to 

cause the injury, there is no exclusive remedy. Bad faith causes of action are permissible. 

9.3 Does the jurisdiction allow medical discovery? 

The Employer/Carrier can obtain medical information regarding claimant whether specific to the injury or not in 

most cases. 

9.4 Adjuster residency requirement? Yes; however, a waiver can be granted, and there are more waivers than enforced residency. 

9.5 



Yes. Actual damages and punitive damages are recoverable. Punitive damages do have some limits based on 

the net worth of the defendant.

NORTH CAROLINA 




work rule. 


1.0 

Under N.C.G.S. § 97‐2(5), the NCIC is provided with 5 alternative methods for calculating an employee's 


average weekly wage. The case law in North Carolina holds that this section sets for a preferencial 


heirarchy for methods of calculating average weekly wage. The preferred method is to divide the 

derive the AWW( i.e.: regular wages, tips, 

employee's earnings for the 52 week period immediately preceding the date of injury by 52. 



If disability exceeds 7 days, benefits of 66 2/3% of the average weekly wage not to exceed the maximum 

compensation rate of $862.00. (Maximum Rate for 2012) 

1.2 Maximum weekly TTD rate $862.00 

1.3 Minimum weekly TTD rate $30.00 

1.4 




Daily TTD is calculated by dividing a claimant's weekly TTD rate by 7. 

1.5 





how much? 

While there is no specific requirement under the Act that the employer is required to continue health 

insurance while the employee is receiving indemnity benefits, canceling the health insurance because 

the employee filed a worker's compensation claim could potentially be seen as retaliatory. Generally 

speaking, all employees should be treated consistently regardless of whether they have filed a worker's 

compensation claim. Termination of health insurance does not increase the TTD rate. 

1.6 



these? 

N.C.G.S. § 97‐31 sets forth the scheduled body parts. This provision also allows for compensation for 

serious bodily disfigurement; serious facial or head disfigurement; and damage to an important bodily 

organ. 

1.7 Maximum weekly PPD rate (2011) $862.00 

1.8 Minimum weekly PPD rate $30.00 

1.9 




rule. 

No. However, North Carolina case law indicates that a permanent partial disability rating shall be given 

at maximum medical improvement. Maximum medical improvement is the time period when the 

employee, if applicable, must choose rather to receive PPD benefits or TPD benefits. They are allowed to 

select the most munificent remedy. 

1.10 



The NCIC approves the payment of a PPD rating. If there is a conflict between the ratings assigned by 

the treating physician and the 2nd opinion physician, the NCIC may average the conflicting ratings.

1.11 



describe. 


N.C.G.S. § 97‐42: Payments made by the employer to the injured employee during the period of 

disability, which were not due and payable when made, may, subject to the approval of the NCIC, be 

deducted from the amount to be paid as compensation. The NC Courts have held that an employer is 

entitled to a credit where a short term or long term disability plan is entirely funded by the employer. 

1.13 Cost of Living Adjustment Not available in North Carolina. 


2.0 




days. 

The waiting period provides that no compensation shall be allowed for the first seven calendar days of 

disability resulting from an injury except for medical benefits as provided in G.S. 97‐25. 

2.1 Are there any “Pay without Prejudice” periods? 

Yes. An employer may file a Form 63. This allows the employer to provide indemnity benefits and 

medical benefits for a period of 90 days without prejudice, with a possible 30 day extension. A Form 63 

also gives the employer the option of providing medical benefits without prejudice to later deny the 

claim. However, an employer must distinguish which option they are selecting on the Form 63. 

2.2 


injury? 

No. 

2.3 



Where the injury results in disability of more than 21 days. 


When the employer or carrier admits Plaintiff's right to compensation, the first TTD payment is due on 

the fourtheenth day after the employer has written or actual notice of the injury or death, on which 

date all compensation then due shall be paid. 

2.5 



Yes. If an injured employee refuses employment procured for him suitable to his capacity, he shall not 

be entitled to any compensation at any time during the continuance of such refusal, unless in the 

opinion of Commission such refusal was justified. To document, provide evidence of available, suitable 

employment opportunities within Plaintiff's assigned work restrictions. 

2.6 





3.0 



Weekly. However, the Industrial Commission can authorize monthly payments in some circumstances. 

3.1 



Yes. For claims arising on or after June 24, 2011, TTD is capped at 500 weeks from the date of first 

disability. An employee may qualify for extended compensation in excess of the 500 week limitation 

only if at the time of his application, 425 weeks have passed since the date of first disability, and the 

employee proves by a preponderance of the evidence that he has sustained a total loss of wage‐earning 

capacity. 

3.2 

Yes, but the Industrial Commission will only approve a settlement agreement if it contains a finding that 

Is global settlement of both medical & indemnity the positions of all of the parties to the agreement are reasonable as to the payment of medical 


expenses. Further, the settlement agreement must contain a list of all of the known medical expenses 

of the employee related to the injury to the date of the settlement agreement.

3.3 




Such PPD ratings depend on the rating provided by the physician. 

3.4 



Yes, so long as the Industrial Commission approves the agreement. 

3.5 



Pursuant to N.C.G.S. §97‐17(e), parties can reach separate contemporaneous agreements resolving 

issues not covered by the Act, including resignation and releases of employment. 

3.6 




When an employee is receiving Social Security Retirement benefits, the employer may reduce the 

extended compensation (beyond the 500 week period) by 100% of the employee's Social Security 

Retirement benefits. This applies to claims arising on or after June 24, 2011. 

3.7 




Disability is defined as the incapacity because of injury to earn the wages which the employee was 

receiving at the time of his injury in the same or any other employment. As such, even if the carrier is 

reimbursing the employer for a salary continuation program, the claimant will still be determined to be 

disabled if he could not make such wages in the competitive labor market. 

3.8 Can indemnity checks be sent to the employer? Compensation is to be provided to the person entitled directly unless otherwise specifically provided. 


4.0 



Two years from date of accident. 

4.1 




compensable? 

The Act only applies where the employer‐employee relationship exists. The question of whether it 

existed at the time of the accident is jurisdictional. This is a mixed question of law and fact. 

4.2 


In order for a claim to be compensable, the claim must arise out of and occur in the course of 


employment. 

AOE or COE. 

4.3 



The employer has 14 days after written or actual notice of the injury or death to admit the claim, deny 

the claim, or initiate payments without prejudice. 

4.4 



Fault of an employee operates to bar workers' compensation benefits when (1) the employee's injury 

was proximately caused by intoxication or being under the influence of a controlled substance or (2) 

when the injury was proximately caused by the employee's willful intention to injure or kill himself. For 

claims arising on or after June 24, 2011, benefits may be denied for an employee's willful 

misrepresentation in applying for employment. No injury by accident, no specific traumatic event, or no 

occupational disease are also available. 

4.5 Are volunteer workers covered? No, with the exception of volunteer firemen. 

4.6 


Yes. 


4.7 



An independent contractor is not a person included within the terms of the Act. Generally, an 

independent contractor is one who exercises independent employment and contracts to do a piece of 

work according to his own judgment and method without being subject to his employer except as to the 

results of his work. Employees of an independent contractor cannot recover against the principal. 

4.8 



compensable? 

A claimant may bring this claim under the occupational disease statute, but there is no general 

cumulative trauma statute.

4.9 




Mental impairments are compensable as long as the resulting disability meets statutory requirements. 

As such, the Act makes no distinction between the compensability of mental conditions and the 

compensability of physical conditions. 

4.10 



describe. 

4.11 






Yes. No compensation shall be payable if the injury to the employee was proximately caused by his 

intoxication, unless the intoxicant was supplied by the employer. Further no compensation shall be 

payable if the injury to the employee was proximately caused by his being under the influence of any 

controlled substance listed in the N.C. Controlled Substances Act where such controlled substance was 

not by prescription by a practitioner. Once an employer presents competent evidence that the 

impairment was a proximate cause of the accident, the burden shifts to employee to show otherwise. 


Injuries resulting from recreational activities, such as horseplay, have not been excluded from the North 

Carolina Workers' Compensation Act and are compensable. 



500 weeks. However, after said 500‐week period, compensation payments due to a dependent child 

shall be continued until such child reaches the age of 18. This applies only to claims arising on or after 

June 24, 2011. For claims arising prior to this date, death benefits are provided for 400 weeks. 

5.1 What is the allowance for burial expenses? For claims arising on or after June 24, 2011, $10,000.00. 

5.2 


dependency. 

Persons wholly dependent shall be entitled to receive the entire compensation payable share and share 

alike to the exclusion of all other persons. If there is no person wholly dependent, then any person 

partially dependent for support upon the earnings of the deceased employee shall be entitled to receive 

a weekly compensation payment. If there are no whole or partial dependents, then compensation is 

payable and is paid in a lump sum at its present value to the deceased employee's next of kin. 

5.3 



No. If there are no whole dependents, partial dependents, or next of kin, then no compensation shall 

be due or payable on account of the death of the deceased employee except burial expenses not to 

exceed $10,000.00. 

5.4 



describe. 

After said 500 week period in case of a widow or widower who is unable to support himself or herself 

because of physical or mental disabilty as of the date of death of the employee, compensation shall 

continue during his or her lifetime or until remarriage and compensation payments due a dependent 

child shall be continued until such child reaches the age of 18. 


6.0 


jurisdiction? 

An employer may engage in vocational rehabilitation services at any point. 

6.1 



If an employee has not returned to work or has returned to work earning less than 75% of his average 

weekly wage and is receiving TPD, the employee may request vocational rehabilitation services so long 

as the education and retraining is reasonably likely to substantially increase the employee's wage 

earning capacity. 

6.2 


vocational rehabilitation? Are these provided by The Carrier is responsible for paying for vocational rehabilitation services. 


6.3 

Such action increases potential exposure by decreasing the likelihood that a claimant will return to 

What is the exposure for terminating an suitable employment in the near future. As such, termination of the employee prior to RTW or MMI 

employee before they reach RTW or reach MMI? potentially increases the time period during which a claimant will receive temporary total disability 

benefits.


7.0 



recovery. 

The North Carolina eligibility rules for a second injury recovery provide that a claimant may be eligible if 

a claimant has previously received a permanent disability under G.S. 97‐33 or 97‐35 and then sustains an 

additional injury in the course and scope of his employment. See N.C.G.S. 97‐40.1 for more 

comprehensive analysis. This statute is generally not applicable. 

7.1 



The employee has the exclusive right to proceed to enforce liability of the 3rd party if such proceedings 

are instituted not later than 12 months after the date of injury or death. If after this 12 month period, a 

summons has not been filed or a settlement has not been reached, the employer shall have the right to 

proceed to enforce the liability of the 3rd party by appropriate proccedings. 

7.2 

Describe the statute regarding our right to An employee shall have the exclusive right to proceed against the 3rd party for 12 months after the date 

pursue a subrogation recovery. Does the statute of injury. However, if settlement is not made and summons is not issued within said 12‐month period 

give preference to our lien when a third party and if employer has filed an admission of liability, then either the employee or the employer shall have 


the right to pursue the 3rd party in appropriate proceedings. See N.C.G.S. 97‐10.2. 

7.3 



Determined by a judge in district or superior court. 

7.4 




The District or Superior Court Judge presiding over the case determines, in his or her discretion the 

amount of the employer's lien, if any. 

8.0 




The employer or its insurance company, subject to any Commission orders, provides and directs medical 

treatment. The employee may petition the Commission to change physicians or approve a physician of 

employee's selection when it is shown by a preponderance of the evidence that the change is 

reasonably necessary. 

8.1 

Are there restrictions regarding the scheduling of An employee must be present for an IME if requested by the employer or ordered by the NCIC, even in 

an Independent Medical Exam? Does an IME denied cases. The employee must be given a copy of the IME report within 10 business days of receipt 


of report. 

8.2 




Surveillance footage can be submitted to an IME physician for evaluation. Prior to the Reform Act on 

June 24, 2011, the only way to show surveillance footage to a treating physician was through a 

deposition, after such footage has been admitted into evidence. Following the Reform Act, there is 

debate as to whether surveillance can be submitted to a treating physician under N.C.G.S. 97‐25.6(d). 

This statute allows the employer to submit additional relevant "medical information" not already 

contained in the employee's medical records to the employee's authorized treating physician. The 

current debate involves whether surveillance of the employee constitutes relevant "medical 

information." If the employer attempts to submit surveillance to the doctor under N.C.G.S. 97‐25.6(d), 

the employer must first notify the employee in writing of the intended submission. The employee will 

then have 10 days to object to the submission. If no objection is made or the employee consents, the 

surveillance may be submitted to the health care provider. If the employee makes a timely objection, 

he may request a protective order. The Employer would then be barred from submitting the 

surveillance until the Industrial Commission rules on the employee's objection. 

8.3 




The Industrial Commission must either disregard or give less weight to extraneous opinions of a 

physician providing an employee with his statutory second opinion on his permanent partial impairment 

rating. 


If the employee refuses to submit for the IME, his right to compensation and to prosecute his claim 

shall be suspended while such refusal persists. When the employer seeks to suspend compensation for 

refusal to attend an IME, it is not necessary to first obtain an order compelling the employee’s 

attendance at said evaluation.


Employers are not required to obtain a HIPAA release or other authorization to obtain the medical 

records of an employee as long as the records are related to the claim or injury. In a claim where 

medical benefits are not being paid, the employer shall provide the employee with contemporaneous 

written notice of the request for records. The employer must provide a copy of the records received 

within 30 days of receipt. 



Where an accident happens while the employee is employed outside of NC, the employee is entitled to 

compensation (1) if the contract of employment was made in NC, (2) if the employer's principal place of 

business was in NC, or (3) if the employee's principal place of employment is within this State. 


www.ic.nc.gov 


9.2 Sole Remedy The Act. 


Employers are not required to obtain a HIPAA release or other authorization to obtain the medical 

records of an employee as long as the records are related to the claim or injury. In a claim where 

medical benefits are not being paid, the employer shall provide the employee with contemporaneous 

written notice of the request for records. The employer must provide a copy of any records received 

within 30 days of receipt. 


9.5 



Yes, but typically this is hard to prove in workers' compensation claims.

SOUTH CAROLINA 




work rule. 


1.0 

"Average weekly wage" must be calculated by taking the total wages paid for the last four quarters 

immediately preceding the quarter in which the injury occurred as reported on the Employment Security 

Commission's Employer Contribution Reports divided by fifty‐two or by the actual number of weeks for 

which wages were paid, whichever is less. When the employment, prior to the injury, extended over a 

period of less than fifty‐two weeks, the method of dividing the earnings during that period by the 

number of weeks and parts thereof during which the employee earned wages shall be followed, as long 

How is AWW calculated? Please include as results fair and just to both parties will be obtained. Where, by reason of a shortness of time during 

information regarding the earning types used to which the employee has been in the employment of his employer or the casual nature or terms of his 

derive the AWW( i.e.: regular wages, tips, employment, it is impracticable to compute the average weekly wages as defined in this section, regard 


is to be had to the average weekly amount which during the fifty‐two weeks previous to the injury was 

being earned by a person of the same grade and character employed in the same class of employment 

in the same locality or community. When for exceptional reasons the foregoing would be unfair, either 

to the employer or employee, such other method of computing average weekly wages may be resorted 

to as will most nearly approximate the amount which the injured employee would be earning were it 

not for the injury. Whenever allowances of any character made to an employee in lieu of wages are a 

specified part of a wage contract they are deemed a part of his earnings. 


If an employee is injured and unable to work for more than seven days, he or she is eligible to be 

compensated at the rate of 66 2/3% of the employee’s average weekly wage, limited to 100% of the 

State’s average weekly wage as established each year by the South Carolina Employment Security 

Commission. If the period of total disability exceeds 14 days, the employee is eligible for compensation 

beginning with the date of the accident. 

1.2 Maximum weekly TTD rate $725.47 (max comp rate for 2012) 

1.3 Minimum weekly TTD rate $75 

1.4 

1.5 

1.6 








how much? 



these? 

Daily TTD is calculated by dividing a claimant's weekly TTD rate by 7. 

The SC Act does not address this. 

Combination 

1.7 Maximum weekly PPD rate $704.92 

1.8 Minimum weekly PPD rate $75 

1.9 




rule. 

No. However, South Carolina case law indicates that a permanent partial disability rating shall be given 

at maximum medical improvement.

1.10 



Judge determines disability. 

1.11 



describe. 

We have TTD, TPD, and PPD. 

1.12 Benefit Offset There is an offset for benefits received in other states. 

1.13 Cost of Living Adjustment None 

2.0 




days. 


Temporary total or temporary partial compensation is incurred on the eighth calendar day of incapacity 

and from the first day of incapacity if the injury results in incapacity for more than fourteen calendar 

days. The seven and fourteen day periods need not be consecutive days. 

2.1 Are there any “Pay without Prejudice” periods? No, but there is no express limit on time for compensability determination. 

2.2 


injury? 




2.3 



If the period of total disability exceeds 14 days, the employee is eligible for compensation beginning 

with the date of the accident. 





2.5 



Yes. If an injured employee refuses employment procured for him suitable to his capacity, he shall not 

be entitled to any compensation at any time during the continuance of such refusal, unless in the 

opinion of Commission such refusal was justified. To document, provide evidence of available, suitable 

employment opportunities within Claimant's assigned work restrictions. Before 150 days after notice, 

no hearing. After 150 days after notice, need hearing to stop benefits. 

2.6 





3.0 



Weekly, but Commission can award different frequency or parties can agree. 

3.1 



500 weeks, or in case of cognitive brain damage or paraplegia or quadriplegia may be cases of lifetime 

benefits with no cap. 

3.2 

Is global settlement of both medical & indemnity Yes. Clincher settlement will include both indemnity and medical exposure, clincher depends on many 


factors ‐ employee vs. non‐employee, SSD issues, etc. 

3.3 




Disability is assigned by judge, impairment assigned by physician. Cannot ball park these figures, too 

many factors, but impairment can be assessed with AMA guides if know diagnosis. Disability will be 

assigned by judge based upon factors such as age, work history, restrictions, skill set, impairment, 

severity of injury, etc. 

3.4 



Yes, on doubtful and disputed basis or when parties agree to settle, but c/a will typically not settle until 

MMI.

3.5 



Yes, but per federal employment law an employer cannot legally state that they will only settle if the 

claimant resigns. Also, resignation will have to be separate document not included in the settlement 

agreement, which would be between the employer and the Claimant. 

3.6 




Permanent and total disability vs. partial wage loss claim vs. scheduled injury 

3.7 




There are no state rules addressing this. 

3.8 Can indemnity checks be sent to the employer? Checks are sent to the Claimant directly. 


4.0 



File Initial Claim (§42‐15‐40)= 2 years 

4.1 

4.2 




compensable? 

Maybe. The Act only applies where the employer‐employee relationship exists. The question of 

whether it existed at the time of the accident is jurisdictional. This is a mixed question of law and fact. 


indicate whether the test is AOE and COE, versus Injury by accident arising out of and occurring in the course and scope of employment. 

AOE or COE. 

4.3 



No deadlines. Either admit or deny, and commission will make finding of compensability. 

4.4 



Statute of limitations, notice, Intentional Acts (willful intent, horseplay, assault, intoxication, suicide, 

speeding), Fraud in the application, not AOE COE 

4.5 Are volunteer workers covered? No 

4.6 


Yes, per Curiel v. Environmental Management Services. 


4.7 



Independent Contractors are not covered. Test (1) employer's right to exercise control or actual control 

over details of work (2) the method of payment (3) furnishing of equipment (4) employer's right to 

terminate. 

4.8 



compensable? 

Repetitive Trauma, if proper notice, and the claimant proves a causal relationship between injury and 

working conditions with medical evidence. 

4.9 

4.10 






describe. 

Yes, the three bases of recovery for cases concerning mental and nervous injury are as follows: (1) 

mental stimulus causing physical injury; (2) physical trauma causing nervous injury; and (3) mental 

stimulus causing nervous injury. Mental injuries are compensable if, the mental injury is induced either 

by physical injury, or by unusual or extraordinary conditions of employment. 

4.11 






The employee must be so intoxicated as to impair his faculties making himself incapable of functioning 

in the workplace without endangering himself or others; to simply have been drinking is not enough. 

Furthermore, the intoxication must be the proximate cause of the employee's injuries. The burden of 

proof of intoxication is on the person claiming the defense. 


Can be compensable if there is a connection to employment. Compensability will be decided on a case 

by case basis.


5.0 What is the maximum statutory death benefit? 500 weeks 

5.1 What is the allowance for burial expenses? $2,500 

5.2 


dependency. 

Surviving spouse and "child" are presumed wholly dependent and entitled to share in the award. 

Spouse won't take less than 50%, if shares with child. If child over 18, must be enrolled in college. 

5.3 



The South Carolina Second Injury Fund 

5.4 



describe. 


6.0 


jurisdiction? 

No 

6.1 



Defendants are not required to provide vocational rehabilitation. 

6.2 


vocational rehabilitation? Are these provided by Defendants are not required to provide vocational rehabilitation. 


6.3 

Such action increases potential exposure by decreasing the likelihood that a claimant will return to 


suitable employment in the near future. As such, termination of the employee prior to RTW or MMI 


potentially increases the time period during which a claimant will receive temporary total. 


7.0 

7.1 

7.2 



recovery. 



After December 31, 2011, the Second Injury Fund shall not accept a claim for reimbursement from any 

employer, self‐insurer, or insurance carrier. The fund shall not consider a claim for reimbursement for 

an injury that occurs on or after July 1, 2008. Prerequisite ‐ (1) permanent physical impairment; (2) 

subsequent injury by accident; (3) knowledge requirement; (4) notice requirement . 

Notify SIF no later than after the payment of the first 78 weeks of compensation 3rd party recovery, the 

employee may institute the third party action at any time prior to, but not later than one year from the 

acceptance of liability or payment of an award by the carrier or within thirty days prior to the expiration 

of the time in which such action may be brought. 

Describe the statute regarding our right to A Claimant has three remedies (1) to proceed solely against the employer, thereby allowing 

pursue a subrogation recovery. Does the statute employer/carrier the opportunity to pursue reimbursement against 3rd party; (2) to proceed solely 

give preference to our lien when a third party against third party tortfeasor; or (3) to proceed against both. In the later, the carrier shall have a lien on 


the proceeds of any recovery from the third party. 

7.3 



In third party recovery, equitable formula, typically reduced in proportion to the employee's total 

cognizable damages at law. Commission makes determination or parties by agreement. 

7.4 

8.0 







The employer or its insurance company, subject to any Commission orders, provides and directs medical 

treatment. The employee may petition the Commission to change physicians or approve a physician of 

employee's selection when good grounds are shown.

8.1 


an Independent Medical Exam? Does an IME Defendants can choose IME physician, judge can also order IME. 


8.2 




Claimant must be given at least 10 days notice in advance of any communication with a treating 

physician or such evidence will be excluded. 

8.3 




Medical benefits are subject to a fee schedule. 

8.4 IME Generalized Rules Either party can obtain an IME. 


HIPAA; medical records are not privileged, but contact with the doctor is only allowed after the claimant 

received 10 days notice of the communication and is invited to participate. 





http://www.wcc.sc.gov 

9.2 Sole Remedy Exclusive remedy under the Act, unless third party claim and those provisions would apply, too. 

9.3 Does the jurisdiction allow medical discovery? Yes, lawyers for the parties can subpoena medical records from Claimant's providers. 


9.5 



No bad faith claim available to workers' compensation claimant in workers' compensation claims.

TENNESSEE 




work rule. 


1.0 

When the employee has worked for the employer for the prior 52‐week period: "Average weekly wage" 

is calculated by averaging the employee's wages over the 52 weeks immediately preceding the date of 

the injury. The calculation is made in this manner regardless of whether or not the employee received a 


raise or cut in pay during that time period. When the employee has worked for the employer for less 


than 52 weeks: If the employee has worked less than one year, then the employee's average weekly 

derive the AWW( i.e.: regular wages, tips, 

wage is calculated by dividing the total amount of wages by the number of weeks actually worked, as 


long as the calculation is fair to both sides. If not practical because the employee has worked for the 

employer for a short time, then obtain the wages of a similarly situated employee to complete the wage 

statement. 



It is 66‐2/3% of the employee's average weekly wage, so long as the amount does not exceed the 

maximum weekly temporary total disability benefits (currently 110% of the state average weekly wage) 

or fall below the minimum weekly temporary total disability benefits (currently 15% of the state average 

weekly wage). 

For injuries sustained on or after July 1, 2005, the maximum compensation rate for temporary total 

disability benefits is raised to 110% of the state's average weekly wage. 

1.3 Minimum weekly TTD rate The minimum weekly benefit an employee may receive is 15% of the state's average weekly wage. 

1.4 




Tennessee uses a 7 day work week. 

1.5 

1.6 





how much? 



these? 

Yes, the employer is required to continue the employee's health insurance but the employer may not 

submit medical payments for a work‐related injury under the health insurance policy. 

Tennessee utilizes a combination of statutory scheduled and unscheduled member valuations for 

injuries. 

1.7 Maximum weekly PPD rate Varies by date of injury. It is currently 100% of the state's average weekly wage. 

1.8 Minimum weekly PPD rate 15% of the state's average weekly wage. 

1.9 




rule. 

In a compensable claim in which the employee received temporary total disability benefits, reached 

maximum medical improvement, and received an impairment rating, PPD advance payments shall 

continue until the employee accepts or rejects a properly offered job from the pre‐injury employer or 

the parties attend a BRC. The maximum advance of benefits is the lesser of 60 days or the value of the 

employee's impairment rating. 

1.10 

1.11 





describe. 

In Tennessee, physicians assign impairment ratings and judges determine vocational disability. 

New maximum/minimum benefit rates are released by the Department of Labor in June each year. The 

current rates are effective from July 1, 2011 through June 30, 2012. 


Employers may take credit against WC disability benefits for any payments made to an employee under 

an employer‐funded disability plan for the same injury, provided that the employer's disability plan 

explicitly provides for a setoff of such payments against WC liability. WC PPD and PTD payments for 

BAW injuries can also be reduced by the amount of any old age social security benefits attributable to 

employer contributions which the employee receives.

1.13 Cost of Living Adjustment None. 


2.0 




days. 

Temporary total disability benefits begin on the 8th day after the disability resulting from the 

employee's injury. The statute provides that if the disability extends to fourteen (14) days or more, then 

the compensation shall begin with the first day of disability after the injury. Payments are then due 

twice monthly to the employee during the period of temporary total disability. 

2.1 Are there any “Pay without Prejudice” periods? No. 

2.2 


injury? 

No. 

2.3 












2.5 



Yes. The employer must prove that light duty was offered to the employee, that the offer was rejected, 

and that the offer was for a job within the restrictions assigned by the authorized treating physician. 

2.6 




Review the applicable state filing deadlines and potential penalties at: 

http://www.tn.gov/labor‐wfd/wcpenaltyoverview.pdf 

3.0 




Bi‐weekly. 

3.1 



No, with 2 exceptions. 1) If the claim is for a mental injury, then the claimant is capped at receiving 104 

weeks of temporary total disability benefits after reaching maximum medical improvement for the 

physical injury; or, if no physical injury, then 104 weeks of temporary total disability after the date of 

injury. 2) If the claimant is receiving pain management beyond the expected healing period for a 

physical injury, then the claimant is capped at receiving 104 weeks of temporary total disability benefits 

after the commencement of pain management pursuant to a referral by the authorized physician. 

3.2 



For injuries occurring prior to June 6, 2011: 1) future medical benefits may not be settled until 3 years 

from the date on which the settlement is approved; 2) if the injury is to a scheduled member valued at 

less than 200 weeks, then future medical benefits may be scheduled at any time; and 3) if the claim is 

settled for 50 times the minimum compensation rate or less on a doubtful and disputed basis, then 

future medical benefits may be closed at any time. 

For injuries occurring on or after June 6, 2011, future medical benefits may be closed at any time unless 

the claimant is permanently and totally disabled. In those cases, future medical benefits may not be 

closed at any time. 

3.3 




For injuries occurring on or after January 1, 2008: 

Soft tissue ‐ 0%. Fracture ‐ 0%. Surgery on neck ‐ 4% to 23%. Surgery on shoulder ‐ 0% to 7% BAW. 

Surgery on lumbar spine ‐ 5% to 23% BAW. Surgery on knees ‐ 0% to 13% LE for meniscus/ACL tears; 

21% ‐43% LE for TKR. 

3.4 



No, typically not unless the settlement is reached on a doubtful and disputed basis. 

3.5 



No. 

3.6 




Review the applicable state filing deadlines and potential penalties at: 

http://www.tn.gov/labor‐wfd/wcpenaltyoverview.pdf

3.7 




The employer may choose to continue to provide the employee with his/her regular salary in lieu of 

temporary WC benefits. The employer is given a credit for these payments in an amount equal to what 

the employee would have received in temporary WC benefits and any amount paid in salary beyond this 

credit will not be credited against an award for permanent WC benefits. 

3.8 Can indemnity checks be sent to the employer? Temporary total disability checks should be sent to employee or employee's legal counsel. 


4.0 



One year after date of injury or date of last voluntary medical payment. 

4.1 

4.2 




compensable? 

Yes, typically. Factors to be considered are whether the employer required the employee to attend the 

training/orientation, and whether the employee is paid for the training/orientation. If there is no 

employment contract and/or no contingency contract between the employer and the employee, then 

the injury is not compensable. 


The test of compensability is whether the alleged injury arose out of employment and occurred in the 


course and scope of employment. 

AOE or COE. 

4.3 



There are no statutory deadlines; however, the legislature has given authority to the Department of 

Labor to promulgate such rules. The Department of Labor requires that a decision on compensability 

must be made within fifteen (15) days of verbal or written notice of an injury. All mandatory filings and 

notice requirements must be met within that timeframe. See http://www.tn.gov/sos/rules/0800/0800‐ 

02/0800‐02‐14.pdf 

4.4 



Willful misconduct, intentional self‐inflicted injuries, intoxication, and willful failure to use a safety 

device. 

4.5 Are volunteer workers covered? No 

4.6 

Yes, in a limited circumstances. Illegal aliens may not receive PPD awards in excess of the caps. Illegal 


aliens may not receive an award above the 1.5 cap when they are unable to return to their pre‐injury 


jobs due to discovery of their illegal status. 

4.7 



Independent contractors are not employees and are therefore not covered if they are indeed 

"independent contractors." The following statutory criteria is used to determine whether a person is 

considered an independent contractor: 1) the right to control the conduct of the work, 2) the right of 

termination, 3) the method of payment, 4) the freedom to select and hire helpers, 5) the furnishing of 

tools and equipment, 6) self‐scheduling of working hours, and 7) the freedom to offer services to other 

entities. 

4.8 



compensable? 

For injuries prior to June 6, 2011, cumulative (or gradual) injuries are not specifically address by statute, 

though courts have generally held these injuries are compensable as long as they arise out of and are in 

the course and scope of employment. For injuries occurring on or after June 6, 2011, cumulative 

(gradual/repetitive) injuries such as hearing loss, CTS and repetitive motion injuries are only 

compensable if the condition primarily arose out of and in the course and scope of the employment. 

4.9 




Yes. There must be underlying physical injury accompanying the mental injury. If there is no physical 

injury, then the mental injury must be caused by fright, shock, or excessive unexpected anxiety. The 

mental injury will not be compensable if it is caused by the normal stress and strain of employment. 

4.10 

For injuries occurring on or after June 6, 2011, the opinion of the physician selected by the employee 

from the employer‐provided panel is presumed to be correct on the issue of causation. This 


presumption may be defeated by a preponderance of evidence to the contrary. Thus, it is imperative 


that the employee chooses a physician from the panel and signs the panel indicating his/her choice. If a 

describe. 

signed panel is not obtained, then the authorized treating physician's opinion on causation will not be 

given this presumption of correctness.

4.11 






Yes. An injury or death due to the employee’s intoxication or use of illegal drugs is not compensable if 

the employer can show that the employee was intoxicated and that the intoxication caused the 

accident. Tennessee has a Certified Drug‐Free Workplace Program and if the employer is certified and 

the employee tests 0.08% blood alcohol content (BAC) in a non‐safety sensitive position, tests 0.04% 

BAC in a safety sensitive position, or tests positive for a drug listed in TENN. CODE ANN. § 50‐9‐103, it is 

presumed that the employee was intoxicated and the intoxication was the cause of the injury. There is 

a rebuttable presumption that the drug or alcohol was the proximate cause of the injury. For injuries 

prior to June 21, 2011, the burden then shifts to the employee to prove by a preponderance of the 

evidence that the drug or alcohol was not the proximate cause of the injury. For injuries on or after 

June 21, 2011, the employee must prove by clear and convincing evidence that the drug or alcohol was 

not the proximate cause of the injury. If, however, the employer knew about the intoxication of the 

employee and allowed the employee to keep working, the rebuttable presumption does not apply. 


There is no hard and fast rule as to which recreational injuries will be considered work‐related for the 

purposes of coverage under the Workers' Compensation Act. Tennessee cases have, however, set forth 

some general principles to determine whether or not an injury sustained during a recreational activity 

would be compensable: 1) If the injury occurs on the employer's premises during a lunch or 

recreational period as a regular incident of the employment, it is generally held compensable, 2) If the 

employer has expressly or impliedly required participation, or made the activity part of the services of 

an employee, then the injury is generally held compensable, 3) If the employer derives substantial 

direct benefit from the activity beyond the tangible value of improvement in employee health and 

morale that is common to all kinds of recreation and social life, then the injury is generally held 

compensable. 



When the work injury or occupational disease results in the death of the employee, benefits are paid to 

the employee's dependents. If the employee leaves no dependents, the employee's estate collects a 

lump sum payment of $20,000.00. T.C.A. § 50‐6‐210 gives specific, yet very complicated guidelines as to 

who is a dependent and who is not. There are different compensation rates payable to each kind of 

dependent, and combinations of dependents. The most any dependent can collect in death benefits is 

400 weeks of benefits at two thirds of the employee's average weekly wage. 

5.1 What is the allowance for burial expenses? Reimbursement up to $7,500.00 is allowed for burial expenses. 

5.2 


dependency. 

T.C.A. § 50‐6‐210 gives specific, yet very complicated, guidelines as to who is a dependent and who is 

not based on age and relationship to the deceased employee. 

5.3 



If there are no dependents, death benefits are paid to the employee's estate in a maximum amount of 

$20,000.00 plus reimbursement of burial expenses up to $7,500.00. 

5.4 



describe. 

Benefits paid to a surviving spouse terminate upon death or remarriage. If the remarried spouse has a 

dependent child entitled to receive benefits at the time of the remarriage, then that child is treated as 

an orphan and the remaining death benefits will be recalculated accordingly. 

6.0 


jurisdiction? 


No. 

6.1 



Vocational rehabilitation is not compulsory in Tennessee. 

6.2 


vocational rehabilitation? Are these provided by Not applicable. 


6.3 

Terminating an employee prior to MMI or RTW will result in the higher statutory cap applying to the 


claim, unless the termination is due to the employee’s misconduct or caused by the employee for 


reasons unrelated to the injury. The result is the same as if termination occurs after MMI or RTW.


7.0 



recovery. 

The Reform Act of 2004 eliminates Second Injury Fund liability when the combination of awards equals 

or exceeds 100% to the body as a whole as previously provided by T.C.A. § 50‐6‐208(b). The provisions 

of part (b) now only apply to injuries that arose on or before June 30, 2006, and shall have no 

applicability to injuries that arose after June 30, 2006. As subpart (b) has been eliminated by the new 

law, the Second Injury Fund will only be responsible under T.C.A. § 50‐6‐208(a) for injuries in which the 

employee in the current claim is determined to be permanently and totally disabled. In that situation, 

the court is still required to determine the amount of disability that would have resulted from the last 

injury, and then apportion the benefits between the employer and the Second Injury Fund. If an 

employee seeks assistance from the Department of Labor by filing a Request for Assistance, and then 

the specialist issues an order requiring the employer to pay benefits, and subsequently, the court 

determines that the employer is not liable for benefits, the Second Injury Fund is still required to 

reimburse the employer for those benefits. 

7.1 

7.2 



The employee has one (1) year to bring claim against a third party. If the employee fails to bring the 

claim within that period, then the right to bring the claim is assigned to the employer, who gets an 

additional six (6) months to bring the claim in the employer's name, the name of the employee, or the 

name of a surviving beneficiary. 

The employer's subrogation lien arises automatically. The lien does not depend on any involvement of 

Describe the statute regarding our right to the employer in any manner. Nor does the lien depend on the employee being made whole in the third 

pursue a subrogation recovery. Does the statute party action. Tennessee courts have also prevented employees from circumventing an employer's 

give preference to our lien when a third party subrogation lien by ensuring that it does not matter whether the third party action is settled in or out of 


court, or whether the employer's rights are preserved by the employee's settlement agreement with the 

third party. 

7.3 

7.4 

8.0 








It is a dollar for dollar recovery. Employers may recover all accrued benefits paid to or on behalf of the 

employee but may not recover case management costs. If the permanency of the claim is settled in a 

lump sum, then employers may not take credit for future medical payments. 

Employers must pay a pro rata share of the employee's attorney's fees in the employee's third party 

action, unless employers provide their own legal assistance to the employee, regardless of whether the 

employer actually participates in the third party lawsuit. The employee's attorney has a duty to protect 

the subrogation interest of the employer, which is why the employer is required to pay for that portion 

of the attorney's fees. Employers should be aware that they have no subrogation rights against an 

employee's recovery under an uninsured motorist policy. 


One of the most important advantages available to the employer under the Tennessee Workers' 

Compensation Act is the right to control the employee's choice of a treating doctor. The employer 

preserves this right by providing the employee a list of physicians not associated in practice and from 

the local area (if available). As long as the employer provides the required list of physicians, the 

employee must accept the offered treatment from the chosen panel physician or benefits may be 

suspended. 

8.1 

If the claim has been accepted as compensable, then the employer must rely on the opinions of the 


authorized treating physician in most circumstances. The employer is not automatically entitled to an 


IME when the authorized treating physician has rendered an opinion on impairment and causation. The 


employee may obtain an IME on any issue at any point. 

8.2 




No, as long as the mandates in T.C.A. §50‐6‐204 allowing communication with the physicians are strictly 

followed. 

8.3 




The Reform Act of 2004 requires the employer to provide a panel of physicians to the employee (1) in 

writing and (2) on Form C42 created by the Department of Labor. The employee is required to provide 

the employer with a signed HIPAA release. 


If the claim has been accepted as compensable, then the employer must rely on the opinions of the 

authorized treating physician in most circumstances. The employer is not automatically entitled to an 

IME when the authorized treating physician has rendered an opinion on impairment and causation. The 

employee may obtain an IME on any issue at any point. 


For injuries prior to June 6, 2011, cumulative (or gradual) injuries are not specifically address by statute, 

though courts have generally held these injuries are For injuries prior to June 6, 2011, the courts have 

held that there is an inherent privilege between a WC patient and his or her physicians. For injuries on 

or after June 6, 2011, a new statute removes this privilege between the WC patient and authorized 

providers paid under WC. Injured workers are required to provide the employer with a signed HIPAA 

compliant medical release allowing employers to obtain all medical records from providers who have 

treated the employee for the work‐related injury.


9.0 Extraterritorial Coverage Not applicable 

9.1 WC Jurisdictional Link(s) Not applicable 


The Exclusive Remedy Doctrine states that where an employee may bring a claim against the employer 

for workers' compensation benefits, the employee is prohibited from bringing a claim against the 

employer for negligence. Exceptions include actions against co‐employees for intentional injuries or 

against the employer when an employee can prove the employer had actual intent to injure the 

employee. 


9.4 Adjuster residency requirement? No. Tennessee has no adjuster certification requirements at this time. 

9.5 



While there is not a Bad Faith cause of action per se, T.C.A. § 50‐6‐118 does allow the Department of 

Labor to establish and collect penalties for the following: (1) Failure of a covered employer to provide 

workers' compensation coverage or qualify as a self‐insurer; (2) Late filing of accident reports; (3) Bad 

faith denial of claims; (4) Late filing of notice of denial of claim; (5) Late filing of notice of change in 

benefit payments; (6) Late filing with the department of notice of filing of lawsuits by employees or 

employee representatives; and (7) Late filing of judgments by insurance companies or by employers, if 

self‐insured.

TEXAS 




work rule. 


1.0 

Basic rule for full‐time employees working 30+ hours per week: AWW is the total gross pecuniary wages 

for the 13 weeks immediately preceding the injury, plus the value of all nonpecuniary wages paid during 

that 13 week period that were not continued after the injury, and dividing the grand total by 13. If at 

some later date, nonpecuniary wages are stopped, the AWW must be recalculated to include the 

nonpecuniary wages. Pecuniary wages are wages paid in the form of money. Nonpecuniary wages 

include health insurance premiums, clothing/uniforms, lodging/housing/rent, and provisions of a 

vehicle/fuel. Vacation, sick pay, bonuses and commission actually paid during the thirteen weeks are 

How is AWW calculated? Please include included in gross wages. If the injured employee has not worked the full 13 weeks prior to the date of 

information regarding the earning types used to injury, the wages used are those paid by the employer to a similar employee who performs similar 

derive the AWW( i.e.: regular wages, tips, services who earned wages for the full 13 weeks preinjury. If there is no similar employee at the 


employer's business, the calculation is based on wages paid to a similar employee who performed 

similar services in the same vicinity for the 13 weeks preinjury. If none of these methods can be applied 

reasonably due to the irregularity of the employment or, if the employee has lost time from work, 

without remuneration, during the said 13‐week period due to illness, weather, or other cause beyond 

the control of the employee, the Division of Workers’ Compensation (DWC) may determine the AWW by 

any method that it considers fair, just, and reasonable to all parties and consistent with these methods. 

Exceptions to these methods exist for part‐time employees, seasonal employees, minors, apprentices, 

trainees, students, State military members, Texas Task Force 1 members and school district employees. 


Temporary income benefits (TIBs) compensate the employee for lost wages due to the compensable 

injury during a period in which the employee has disability and has not reached maximum medical 

improvement (MMI). The amount of TIBs an employee is entitled to is based on his or her lost wages. 

Lost wages are calculated by subtracting the employee’s post‐injury earnings from their AWW. An 

employee who earns $8.50 or more per hour preinjury is entitled to TIBs in the amount of 70% of the 

lost wages. An employee who earns less than $8.50 per hour preinjury is entitled to 75% of the lost 

wages for the first 26 weeks of TIBs due, and 70% of the lost wages for all TIBs payments thereafter. 


The DWC computes the maximum weekly income benefits for each state fiscal year not later than 

October 1 of each year – as such, the maximum rate fluctuates annually. The maximum weekly income 

benefit in effect on the date of injury is applicable for the entire time that the benefit is payable. For 

dates of injury from 10/01/11 through 09/30/12, the maximum weekly TIBs rate is $787.00. 


The DWC computes the minimum weekly income benefits for each state fiscal year not later than 

October 1 of each year – as such, the minimum rate fluctuates annually. The minimum weekly income 


dates of injury from 10/01/11 through 09/30/12, the minimum weekly TIBs rate is $118.00. 

1.4 

1.5 

1.6 








how much? 



these? 

There is no daily TIBs rate in Texas. TIBs are paid on a weekly (7 day) basis. Any earnings during each 

post‐injury week are termed post‐injury earnings (PIE). AWW – PIE = Lost wages. With some 

exceptions, TIBs are then paid and calculated on a week‐by‐week basis based on 70% of lost wages. See 

1.1 above. 

The Texas Workers’ Compensation Act and Rules do not require an employer to continue health 

insurance while the employee is receiving indemnity benefits. Health insurance premiums are classified 

as nonpecuniary wages. The initial calculation of AWW does not include nonpecuniary wages continued 

by the employer after the injury. However, except in limited circumstances, if the employer discontinues 

providing nonpecuniary wages, the AWW shall be recalculated to include these discontinued 

nonpecuniary wages. 

Texas does not use PPD ratings. Texas uses impairment ratings (IR), which are assessed by qualified 

physicians utilizing the AMA Guides to the Evaluation of Permanent Impairment. Once that rating is 

assessed, the rating is multiplied by three (3), and the employee receives that many weeks of 

impairment income benefits (IIBs).

1.7 Maximum weekly PPD rate 

The DWC computes the maximum weekly income benefits for each state fiscal year not later than 

October 1 of each year – as such, the maximum rate fluctuates annually. The maximum weekly income 


dates of injury from 10/01/11 through 09/30/12, the maximum weekly IIBs rate is $551.00. 

1.8 Minimum weekly PPD rate 

The DWC computes the minimum weekly income benefits for each state fiscal year not later than 

October 1 of each year – as such, the minimum rate fluctuates annually. The minimum weekly income 


dates of injury from 10/01/11 through 09/30/12, the minimum weekly IIBs rate is $118.00. 

1.9 




rule. 

Clinical maximum medical improvement (MMI) is the earliest date after which, based on reasonable 

medical probability, further material recovery from or lasting improvement to an injury can no longer 

reasonably be anticipated. A doctor must be authorized by DWC to certify MMI. Statutory MMI occurs 

upon the expiration of 104 weeks from the date on which income benefits begin to accrue. A doctor 

who certifies that an injured employee has reached MMI shall assign an impairment rating for the 

compensable injury. Impairment income benefits accrue on the day after the injured employee reaches 

MMI. If the carrier has not received an impairment rating from a qualified doctor by the date of 

statutory MMI, the carrier may suspend TIBs and is not required to IIBs until such time as it receives a 

report of a valid IR. The carrier may also make a reasonable assessment of what it believes the true 

impairment rating should be and, if it does so, shall initiate IIBs within five days of making the 

assessment. 

1.10 

1.11 





describe. 

The carrier may suspend TIBs and initiate IIBs based on the MMI certification and IR assessed by a 

treating doctor or a DWC‐appointed designated doctor. If the first valid MMI certification and IR are not 

disputed by either party within ninety (90) days of receipt, that MMI certification and IR become final by 

operation of law. Otherwise, if one or more of the parties challenge the MMI certification and IR and/or 

if different doctors have provided different opinions, the issues will ultimately be decided by a 

Contested Case Hearing Officer with the DWC. 

There are no other critical issues related to the benefit rates for Texas. 


An employee or legal beneficiary may seek damages from a third party who is or becomes liable to pay 

damages for an injury or death that is compensable under the Texas WC Act and Rules, and may also 

pursue a claim for workers' compensation benefits in connection with that same injury claim. The net 

amount recovered by an employee in a third‐party action shall be used to reimburse the WC carrier for 

benefits, including medical benefits, that have been paid for the compensable injury. Any amount 

recovered that exceeds the amount of the reimbursement shall be treated as an advance against future 

benefits, including medical benefits, that the employee is entitled to receive under the WC Act. If such 

advance is adequate to cover all future benefits, the carrier is not required to resume the payment of 

benefits. If the advance is insufficient, the carrier shall resume the payment of benefits when the 

advance is exhausted.In addition, a carrier is entitled to claim a reduction of IIBs or SIBs based on the 

cumulative impact of a prior compensable injury upon the claimant’s current impairment rating. Such 

contribution reductions must be ordered by the Division of Workers’ Compensation before benefits can 

be reduced. 

1.13 Cost of Living Adjustment 

Lifetime Income Benefits (LIBs) are the only benefits in Texas that are subject to a COLA increase. Those 

benefits are subject to an annual 3 percent increase. There is no cost of living adjustment on TIBs or IIBs. 

Both types of benefits are subject to the statutory maximum weekly rates. 

2.0 




days. 


TIBs may not be paid for an injury that does not result in disability for at least one week. If the disability 

continues for longer than one week (7 days), weekly TIBs begin to accrue on the eighth day after the 

date of the injury. If the disability is delayed or intermittant, weekly TIBs accrue on the eighth day of 

accumulated days of disability. For dates of injury occurring before September 1, 2005, if the disability 

continues for four (4) weeks or longer from the date the disability began, the TIBs are computed from 

the date disability began. For dates of injury occurring on or after September 1, 2005, if the disability 

continues for two (2) weeks or longer after the date the disability begins, the TIBs are computed from 

the date the disability begins. 


If the carrier disputes compensability of a claim within fifteen (15) days of receipt of notice of the claim, 

no benefits are due. If the carrier fails to dispute within fifteen (15) days, income and medical benefits 

accrued during that period are owed. Thereafter, if carrier disputes the claim by the 60th day after 

notice of receipt of the claim, benefits can be suspended. Carrier does not waive the right to dispute 

compensability by having paid benefits under this scenario. 

2.2 

2.3 


injury? 



No. Disability begins on the day after the date of injury. See 2.0 above. 

See 2.0 above.


A carrier who has received written notice of an injury and has not disputed the claim must initiate TIBs 

no later than the seventh (7th) day after the accrual date. The accrual date is the employee's eighth 

(8th) day of disability. 

2.5 



An employer may offer an employee a modified duty position within the employee's work abilities as 

determined by the employee's treating doctor. In the absence of a Work Status Report by the treating 

doctor an offer of employment may be made based on another doctor's assessment of the employee's 

work status provided that the doctor made the assessment based on an actual physical examination of 

the employee performed by that doctor and provided that the treating doctor has not indicated 

disagreement with the restrictions identified by the other doctor. An employer's offer of modified duty 

must be made to the employee in writing, and a copy of the Work Status Report on which the offer is 

being based shall be included with the offer as well as the following information: (1) the location at 

which the employee will be working; (2) the schedule the employee will be working; (3) the wages that 

the employee will be paid; (4) a description of the physical and time requirements that the position will 

entail; and (5) a statement that the employer will only assign tasks consistent with the employee's 

physical abilities, knowledge, and skills and will provide training if necessary. A carrier may deem the 

wages offered by an employer through a bona fide offer of employment to be Post‐Injury Earnings (PIE), 

and reduce TIBs accordingly. 

2.6 

3.0 

3.1 

3.2 








There are no other critical issues related to the initial benefit payment for Texas. 


TIBs and IIBs are issued weekly, unless the parties agree to a monthly payment schedule. Supplemental 

Income Benefits (SIBs) are determined quarterly and paid monthly. 

Statutory MMI occurs upon the expiration of 104 weeks from the date on which income benefits begin 

to accrue. The accrual date is the employee's eighth (8th) day of disability. Thus, an employee cannot 

receive more than 105 weeks of TIBs. 

Is global settlement of both medical & indemnity For dates of injury on or after January 1, 1991, global settlement of both medical and indemnity is not 


permitted. 

3.3 




Texas does not use PPD ratings. Texas uses impairment ratings (IR) pursuant to the AMA Guides to the 

Evaluation of Permanent Impairment. The 4th edition of the AMA Guides is currently applicable to new 

dates of injury. It is difficult to provide generalized estimates for all situations as the ratings vary greatly 

based upon the nature of the injury, the treatment and results. Soft tissue injuries to the neck or lumbar 

spine usually result in a 0% or 5% rating. Spinal surgical conditions can fall within the range of 5% to 

25% or even greater in extreme cases. Knees and shoulder conditions vary too greatly for estimation. 

3.4 



No. Settlements or agreements as to the permanent impairment are not permitted prior to a 

certification of MMI. Texas Labor Code §408.005; 28 TAC 147.9(b) 

3.5 



The statute and rules are silent as to this issue. A search of DWC policy statements do not indicate any 

formal position on this issue. It is clear that DWC has no jurisdiction or authority to approve or enforce 

such an agreement. Accordingly, the effectiveness of including such a provision in an agreement or 

settlement is questionable. The DWC is generally restrictive in approving settlements and it seems likely 

that inclusion of such a provision in the settlement may result in non‐approval by the DWC. 

3.6 




For any case where the permanent impairment may be greater that 15%, there is potential exposure for 

supplemental income benefits. Eligibility for these benefits can extend to 401 weeks from the date of 

the injury and are reviewed on a quarterly basis. The current standard for eligibility requires “active 

efforts to return to work.” This may be satisfied by a job search, a return to work relatively equal to the 

current ability, participation in vocational retraining, or a showing no ability to work. The Claimant must 

also have earnings at less that 80% of the pre‐injury average weekly wage and must prove that the 

reduction in earning was a direct result of impairment from the injury. See Texas Labor Code §§ 408.141 

‐ . 151 & 28 TAC 130.100 ‐ .109. Texas also provides for lifetime income benefits in certain situations 

involving catastrophic injuries. See Texas Labor Code §§ 408.161 ‐ .162 & 28 TAC 131.1 ‐ . 4 

3.7 




Salary continuation reimbursement to the employer is dependent upon the employer providing notice 

to the carrier in a timely fashion. Such notices must be provided precisely as required by statute and 

rule. Texas Labor Code §§ 408.003 & 408.105 and 28 TAC 129.13. 

3.8 Can indemnity checks be sent to the employer? 

No. Carrier are obligated to make payment directly to the injured worker or beneficiaries. 28 TAC 

124.5(b). 


4.0 



The injured employee must file his or her claim within one year of the date of the injury, or show good 

cause for the failure to do so. Texas Labor Code §§ 409.003 ‐ .004 & 28 TAC 122.2.

4.1 

4.2 




compensable? 

Whether the Claimant was an employee and was injured in the course and scope of the employment is a 

fact issue and will depend on the individual facts of the case. There is, however, case law authority that 

support that injuries during the hiring process do not result in compensable claims, as no employeremployee 

relationship exists. 

Texas has a statutory definition of Course and Scope that applies both AOE and COE standards: 

What is the Compensability Test? Please “Course and scope of employment” means an activity of any kind or character that has to do with and 

indicate whether the test is AOE and COE, versus originates in the work, business, trade, or profession of the employer and that is performed by an 

AOE or COE. 

employee while engaged in or about the furtherance of the affairs or business of the employer.” Texas 

Labor Code § 401.011(12). 

4.3 



The current provisions require that the carrier either initiate benefits or dispute the claim within 15 days 

of its initial written notice of the injury. Texas Labor Code § 409.021(a). The Carrier may continued to 

investigate the claim and may dispute the claim prior to the 60th day from its initial written notice of the 

injury. Texas Labor Code § 409.021(c). After that 60‐day period has passed, a dispute of the 

compensability of the claim may only be made if shown to be based on new evidence that could not 

have reasonably been discovered earlier. Texas Labor Code § 409.021(d). 

Texas Labor Code § 406.032 provides the following affirmative defenses: 

4.4 



An insurance carrier is not liable for compensation if: 

(1) the injury: 

(A) occurred while the employee was in a state of intoxication; 

(B) was caused by the employee's willful attempt to injure himself or to unlawfully injure another 

person; 

(C) arose out of an act of a third person intended to injure the employee because of a personal reason 

and not directed at the employee as an employee or because of the employment; 

(D) arose out of voluntary participation in an off‐duty recreational, social, or athletic activity that did not 

constitute part of the employee's work‐related duties, unless the activity is a reasonable expectancy of 

or is expressly or impliedly required by the employment; or 

(E) arose out of an act of God, unless the employment exposes the employee to a greater risk of injury 

from an act of God than ordinarily applies to the general public; or 

(2) the employee's horseplay was a producing cause of the injury. 

For each of these defenses, the Carrier has the initial burden to put forth evidence to support 

application of the defense. Once that burden is met, the injured worker has the burden of proof to 

refute the defense. 


No. Volunteers do not meet the definition of an employee in Texas Labor Code § 401.012. Some 

emergency service employers may however elect to provide coverage to its volunteer employees. Texas 

Labor Code § 406.098. 

4.6 

4.7 

4.8 

4.9 


Yes. Under the current case law, illegal alien status is not bar to Texas workers’ compensation benefits. 






compensable? 




Yes. Coverage for independent contractors and their employees are governed by Texas Labor Code §§ 

406.141 ‐ .146 and 28 TAC 112.101 ‐ .203. The general rule is that independent contractors are not 

covered unless agreed upon in writing in advance of an injury. 

Yes. The Claimant must prove that the work involves (1) repetitive and traumatic activity; (2) that an 

injury exists; and (3) that a causal nexus exists between the work and the injury. 

No. For a psychological injury to be compensable it must arise from a specific time, place and event. 

Repetitive mental stress claims are not compensable. Further, if the injury arose from a “legitimate 

personnel action, including a transfer, promotion, demotion, or termination, is not a compensable 

injury.” Texas Labor Code §408.006(b) 

Heart attacks are compensable only if 

4.10 

(1) the attack can be identified as: 

(A) occurring at a definite time and place; and 

(B) caused by a specific event occurring in the course and scope of the employee's employment; 


(2) the preponderance of the medical evidence regarding the attack indicates that the employee's work 


rather than the natural progression of a preexisting heart condition or disease was a substantial 

describe. 

contributing factor of the attack; and 

(3) the attack was not triggered solely by emotional or mental stress factors, unless it was precipitated 

by a sudden stimulus. 

Texas Labor Code § 408.008

Yes. This is treated as an affirmative defense with a shifting burden of proof described above in 4.4. 

The definition of intoxication is set out in Texas Labor Code § 401.013: 

4.11 






(a) In this subtitle, “intoxication” means the state of: 

(1) having an alcohol concentration to qualify as intoxicated under Section 49.01(2), Penal Code; or 

(2) not having the normal use of mental or physical faculties resulting from the voluntary introduction 

into the body of: 

(A) an alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code; 

(B) a controlled substance or controlled substance analogue, as defined by Section 481.002, Health and 

Safety Code; 

(C) a dangerous drug, as defined by Section 483.001, Health and Safety Code; 

(D) an abusable glue or aerosol paint, as defined by Section 485.001, Health and Safety Code; or 

(E) any similar substance, the use of which is regulated under state law. 

(b) The term “intoxication” does not include the loss of normal use of mental or physical faculties 

resulting from the introduction into the body of a substance: 

(1) taken under and in accordance with a prescription written for the employee by the employee's 

doctor; or 

(2) listed under Subsection (a) by inhalation or absorption incidental to the employee's work. 

(c) On the voluntary introduction into the body of any substance listed under Subsection (a)(2)(B), based 

on a blood test or urinalysis, it is a rebuttable presumption that a person is intoxicated and does not 

have the normal use of mental or physical faculties. 

**The Texas Penal code set out the blood alcohol level for intoxication at 0.08. 

To support the denial you should obtain the complete documentation of the drug testing, including the 

chain of custody sheet, the screen tests results, the confirmatory GSMS finding, and the quantitative 

analysis. You also may want to consider obtaining a peer review of this documentation. 



5.1 What is the allowance for burial expenses? 

There is an applicable affirmative defense set out in Labor Code § 406.032(1)(D) which provides that an 

injury is not compensable if it ”arose out of voluntary participation in an off‐duty recreational, social, or 

athletic activity that did not constitute part of the employee's work‐related duties, unless the activity is 

a reasonable expectancy of or is expressly or impliedly required by the employment” The case law also 

applies the standard set out in Mersch v. Zurich, 781 S.W. 2d 447 (Tex. App.‐Fort Worth 1989, writ 

denied): Participation in an off‐duty recreational, social or athletic activity is in the course and scope of 

employment, (1) where the activity is expressly or impliedly required, (2) where the employer derives a 

benefit, (3) or where the activity is at the place of employment and the employee must hold himself 

ready for work and the activity takes place with express or implied permission. 


Death benefits are paid at 75% of the average weekly wage. Texas Labor Code § 408.181(b). This 

benefit, however, is capped by the maximum weekly benefit provisions of Section 408.061, which is 

adjusted each year and determined by the date of the injury. For dates of injury between 10/1/11 and 

09/30/12, the maximum Death Benefit Rate is $787.00. 

The current allowance for burial benefits is the lessor of the (1) actual costs or (2) $6,000. Texas Labor 

Code § 408.186. 

5.2 

5.3 


dependency. 



Texas has a complex distribution of death benefits between spouses, children, and other eligible 

beneficiaries. Parents and grandchildren may be eligible in certain circumstances. Texas Labor Code §§ 

408.182 ‐ .184 and 28 TAC 132.2 ‐ .9 & .11 ‐ .12 cover the eligibility of beneficiaries and the distribution 

of death benefits between dependents. 

If there are no dependents to a compensable fatal claim, the Carrier is to pay an amount equal to 364 

weeks of benefits to the Subsequent Injury Fund. Texas Labor Code § 408.184(c) & 28 TAC 132.10. 

5.4 



describe. 

An employer may become liable to certain beneficiaries of a deceased employee for punitive damages if 

the employee's death was the result of the employer's gross negligence. Such claims are determined in 

district court and are not adjudicated by the Division of Workers' Compensation. 

6.0 


jurisdiction? 


No. Vocational rehabilitation is elective in Texas, and is payable at the claimant's expense, or is provided 

as a state benefit through the Texas Department of Assistive and Rehabilitative Services (DARS).

6.1 



Under Sec. 408.150, the division shall refer an employee to DARS with a recommendation for 

appropriate services if the division determines that an employee could be materially assisted by 

vocational rehabilitation or training in returning to employment or returning to employment more 

nearly approximating the employee's preinjury employment. The division shall also notify insurance 

carriers of the need for vocational rehabilitation or training services. The insurance carrier may provide 

services through a private provider of vocational rehabilitation services under Section 409.012. 

An employee who refuses services or refuses to cooperate with services provided under this section by 

DARS or a private provider loses entitlement to supplemental income benefits. 

6.2 

DARS offers a Vocational Rehabilitation Program to assist people who have physical or mental 


disabilities prepare for, find or keep employment. These services are not paid for by the carrier. A 


qualifying employee may, however, satisfy her eligibility criteria for Supplemental Income Benefits (SIBs) 


by successfully complying with the recommendations of a DARS counselor. SIBs are paid by the carrier. 

6.3 

An employee who is disabled and who has not reached MMI in Texas is eligible to receive Temporary 

Income Benefits (TIBs). Terminating an employee who has not yet reached MMI increases the likelihood 

that the employee will qualify for TIBs, particularly if the employee is working under restrictions. Not 

What is the exposure for terminating an every such termination will automatically qualify the employee for TIBs. Such cases are adjudicated on a 

employee before they reach RTW or reach MMI? case‐by‐case basis. Texas does have an anti‐discrimination provision, which prohibits an employer from 

discharging or otherwise discriminating against an employee who has filed a claim in good faith, hired a 

lawyer to represent the employee in a claim, or instituted or caused to be instututed in good faith a 

workers' comp proceeding or testified in a workers' comp proceeding. Sec. 451.001. 


7.0 



recovery. 

Carriers in Texas must generally comply with Division orders and reports of DWC‐appointed doctors 

(designated doctors) even during the pendency of a dispute involving those orders or reports. If the 

carrier ultimately prevails in those disputes, a carrier can obtain reimbursement of payments made 

pursuant to those orders or opinions from the Texas Subsequent Injury Fund (SIF). Secs. 410.209, 

413.255 and 408.0041. The SIF can also become responsible for the payment of Lifetime Income Benefits 

(LIBs) to injured workers who have qualified for LIBs under certain circumstances. Sec. 408.162. 

7.1 



Texas carriers are bound by the same statute of limitations that injured workers must follow when 

pursuing third party recovery on behalf of the worker. This is generally a two‐year statute for most torts. 

However because the carrier's interest creates a lien, a carrier can avoid many filing deadlines by 

providing proper notice of its lien to the claimant, his counsel, the third party defendant and its counsel. 

7.2 

The first money recovered belongs to the carrier, subject to the payment of attorneys' fees to the 


claimant's attorney, which are ordered by the court and limited to no more than 1/3 of the amount 

pursue a subrogation recovery. Does the statute 

recovered by the attorney on the carrier's behalf, as well as an apportionment of costs. Any recovery 

give preference to our lien when a third party 

made by the employee is treated as an advance against the carrier's future liability. Texas does not 


currently follow the "made whole" doctrine. 

7.3 

7.4 

8.0 








100 percent of the carrier's lien is reimbursed to the carrier, less up to 1/3 of the recovery, which is 

payable to the recovering attorney and apportioned attorneys' fees. 

None. 


Claimant is entitled to choose his treating doctor, and may make an alternate choice with notice to the 

Division. Any subsequent choices of treating doctor must be approved by the Division, based on 

statutory criteria. See Sec. 408.022. Employers and carriers may elect to participate in a health care 

network (HCN) system under Chapter 1305 of the Insurance Code. If such an election is made, the 

employee must treat with a network doctor, under rules established by the Department of Insurance 

and the health care network. 

8.1 

All Required Medical Examinations (RMEs) must be authorized by the Division. An RME may be 

Are there restrictions regarding the scheduling of requested once every 180 days to address issues of medical necessity. An RME for any other purpose 

an Independent Medical Exam? Does an IME may only be requested to address an issue that has been addressed by a Division‐appointed designated 


doctor. These post‐designated doctor RMEs are the primary RMEs to which a carrier may be entitled to 

an examination by its own selection of doctor. 

8.2 




A carrier may forward surveillance footage to a treating or RME doctor without restriction. However, 

significant restrictions exist with respect to communications between carriers, employers and a 

designated doctor. A carrier may only communicate with a designated doctor pursuant to the 

restrictions set out in Sec. 408.0041. Surveillance video can be submited to the designated doctor if 

done pursuant to the requirements of this statute.

8.3 




Texas has adopted the principle of evidence based medicine. All non‐network doctors must follow the 

treatment protocols adopted by the Official Disability Guidelines (ODG) and the return to work protocols 

found in the Medical Disability Advisor (MDA). Medical benefit payments must be made pursuant to fee 

schedules adopted in Division‐promulgated professional, surgical, hospital and ambulatory surgical 

center guidelines. After January 1, 2011 no PPO discounts are premitted for such services. 


The Texas preference is to resolve income and extent‐of‐injury disputes through the use of the 

designated doctor process. An RME is only permitted to address medical necessity issues or, if requested 

on other issues, only after the employee has seen a designated doctor. The designated doctor is 

presumed to be correct with respect to the issues he was ordered to address. 




Medical records and reports are considered strictly confidential in Texas. While there is no single statute 

describing the privacy rules, carriers are well advised to take a restrictive approach with respect to the 

dissemination of confidential health care information. 


Extraterritorial coverage is determined under Sec. 406.071. For Texas coverage to apply to an 

extraterritorial injury, the claim must have been compensable had it occurred in Texas, and the 

employee must have had significant contacts with Texas or his employment must have been principally 

located in Texas. 

http://www.tdi.state.tx.us/ 

http://www.tdi.state.tx.us/wc/indexwc.html 

http://www.oiec.state.tx.us/ 


Under Sec. 408.001. Recovery of workers' compensation benefits is the exclusive remedy of an 

employee covered by workers' compensation insurance coverage or a legal beneficiary against the 

employer or an agent or employee of the employer for the death of or a work‐related injury sustained 

by the employee.A determination under Section 406.032, 409.002, or 409.004 that a work‐related injury 

is noncompensable does not adversely affect the exclusive remedy provisions under the act. The act 

does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a 

deceased employee whose death was caused by an intentional act or omission of the employer or by 

the employer's gross negligence. Such recovery is constitutionally protected. 


9.4 Adjuster residency requirement? 

Medical depositions are rare and generally not permitted. Parties are permitted to obtain Division 

subpoenas for health care records. 

An insurance carrier is statutorily required to provide claims services through offices of the insurance 

carrier located in Texas. Carriers who do not have Texas‐based claims services are advised to consult 

with counsel on this question. 

9.5 



Since 1988, Texas recognized a common law bad faith cause of action arising out of workers' 

compensation claims decisions. Such claims were pursued as a common‐law breach of the duty of good 

faith and fair dealing and/or as Insurance Code violations. Actual and exemplary damages were 

recoverable. In August 2011, the Texas Supreme Court in the case of Texas Mutual Ins. Co. v. Ruttiger 

(No. 08‐0751) determined that alleged Insurance Code violations related to "settlement practices" were 

not actionable for worker's compensation claims handling Misrepresentation of insurance policy terms

Virginia 




work rule. 


1.0 

Generally, the average weekly wage is calculated by dividing 52 by the total earnings of the employee 

How is AWW calculated? Please include for the 52 weeks prior to the injury in the employment in which he was working. If there is insufficient 

information regarding the earning types used to wage information to do so, then alternative methods apply. Periods of lost time in excess of seven 

derive the AWW( i.e.: regular wages, tips, calendar days are excluded from the number of weeks by which the earnings are divided. Regular 


wages, tips, vacation, overtime, and perquisites are included. Insurance paid by the employer and 

retirement benefits paid by the employer are not included in the calculation. 

1.1 How is the weekly TTD rate calculated? The weekly TTD rate is calculated by taking 66 2/3 of the average weekly wage. 



The maximum compensation rate is assigned based on the date of injury; For injuries sustained on or 

after July 1, 2012, the maximum compensation rate is $935.00. 

The minimum compensation rate is assigned based on the date of injury. For injuries sustained on or 

after July 1, 2012, the minimum compensation rate is $233.75. 

1.4 




Virginia uses a 7 day work week. 

1.5 

1.6 





how much? 



these? 

The Virginia Workers' Compensation Act does not require that employers continue health insurance 

while the employee is receiving indemnity benefits. Cessation of health insurance benefits does not 

affect the compensation rate. 

Virginia has a PPD rating schedule (Virginia Code § 65.2‐503). The back, however, is not a ratable 

member. Additionally, the percentage of scarring is determined by the Commission. 

1.7 Maximum weekly PPD rate PPD rates are based on the compensation rates/average weekly wage, excluding COLA. 

1.8 Minimum weekly PPD rate PPD rates are based on the compensation rates/average weekly wage, excluding COLA. 

1.9 




rule. 

The employee must affirmatively file a claim for PPD benefits. Benefits are only awarded when he or 

she has reached maximum medical improvement and the doctor has issued a quantified rating of a 

compensable body part. PPD is not paid if the claimant is receiving TTD benefits. 

1.10 

1.11 





describe. 

Ultimately, the Commission determines the PPD rating, although great deference is generally given to 

the rating of an authorized treating physician. 

Commissioned sales jobs and family‐controlled businesses have special rules for temporary partial 

disability rates. 


1.13 Cost of Living Adjustment 

2.0 




days. 

If the combined disability benefits under the Act and the Federal Old‐Age Survivors and Disability 

Insurance Act is less than 80% of the average monthly earnings of the employee prior to disability or 

death, then a cost of living adjustment may be awarded by the Commission. 


No compensation (indemnity benefits) is allowed for the first seven calendar days of incapacity. 

However, if the incapacity extends past that period, compensation commences on the eighth day. If the 

incapacity continues for more than three weeks, then compensation is paid from the first day of 

incapacity. 


There are no such defined provisions. However, paying compensation for too long may result in a 

finding of a de facto award. This determination is very fact sensitive and can be overcome in certain 

cases.

2.2 


injury? 

No, assuming the employee was paid for the date of accident. 

2.3 



A retroactive payment is made for the waiting period if incapacity continues for more than three weeks. 


Once benefits are awarded, payment must be made within 14 days of when the benefit is due. Failure to 

do so creates exposure for a 20% penalty for late payment of compensation. 

2.5 

2.6 






Yes. If there is an Award, however, an Employer's Application for Hearing must be filed. The employer 

will need to establish the nature of the restrictions and that a specific job was offered to the employee 

within those restrictions. The job must either be approved by the physician or obviously fit within those 

restrictions. 

If the claimant is not on an award and has been released to light duty work, he must market his residual 

physical capacity. 

3.0 




Weekly. 

3.1 



Virginia caps indemnity payments at 500 weeks absent an award for permanent and total disability. 

3.2 

Is global settlement of both medical & indemnity Yes. The Commission must approve the settlement, finding that the settlement agreement is in the best 


interests of the employee. 

3.3 

3.4 






PPD ratings vary widely in Virginia. Most physicians look to the AMA Guides to The Evaluation of 

Permanent Impairment. 

Yes. Again, however, the Commission must find the settlement is in the best interests of the employee. 

3.5 

3.6 






Yes. 

See Item 2.6 above. 

3.7 




There are no provisions in the Virginia Workers' Compensation Act governing this. 

3.8 Can indemnity checks be sent to the employer? 

Not unless the employee is using his or her employer's address as his address of record. The checks 

must be sent directly to the employee absent a specific provision in the Award Order directing payment 

elsewhere. 


4.0 



The statute of limitations for filing a claim of an injury by accident is two years. For most disease claims, 

the claim must be filed within two years of the date of communication of an occupational disease or five 

years from the date of last injurious exposure, whichever comes sooner. 

4.1 

4.2 




compensable? 

Yes. 


Virginia uses an actual risk test and the injury must be shown to have arisen out of and in the course of 


the employment. 

AOE or COE. 

4.3 



None.

4.4 



Statutory defenses include willful misconduct, violation of a known and enforced safety rule, 

intoxication, or violation of a statute/regulation; failure to cooperate with vocational rehabilitation; 

refusal of medical treatment; certain incarcerations; failure to give timely notice of the injury; refusal of 

selective employment; failure to report certain events. There are many other, non‐statutory defenses, 

however, and issues on which the employee has the burden of proof. 

4.5 Are volunteer workers covered? No. 

4.6 


Illegal aliens may receive medical benefits, TTD benefits, PPD, and PTD benefits, but not TPD benefits. 


4.7 



Independent contractors are not covered by the Act, unless specifically covered by a policy of insurance. 

4.8 



compensable? 

No. 

4.9 




Sometimes. If associated with an injury, they can be. Otherwise, the employee must prove a sudden 

shock or fright caused the psychological injury. Psychological problems caused by general work stress is 

not compensable. 

4.10 



describe. 

4.11 






Yes. For alcohol, the required level is 0.08. For other substances, we encourage you to consult counsel. 

Generally, we need to ensure the sample of bodily fluid is tested by a SAMHSA certified laboratory. This 

may require a Motion to Preserve Evidence be filed almost immediately after the injury to ensure the 

medical provider does not destroy the sample. A positive drug test triggers a rebuttable presumption 

that the claimant was intoxicated at the time of the accident, which presumption can only be overcome 

by clear and convincing evidence. See Virginia Code § 65.2‐306. 


If the employer requires participation, then it can be compensable. If, however, the employee is 

participating in an employer‐sponsored off‐duty recreational activity which was not a part of his or her 

duties, then it is not compensable. 


5.0 What is the maximum statutory death benefit? 500 weeks of compensation. 

5.1 What is the allowance for burial expenses? $10,000.00 for burial expenses and $1,000.00 for transportation expenses. 

5.2 


dependency. 

If the employee dies from a condition covered by the Act, a spouse who has not voluntarily deserted the 

deceased is presumed dependent if actually dependent upon the deceased; a child under 18 years of 

age (23 years of age if enrolled as a full time student in an accredited educational institution) or children 

over the age of 18 who are phsyically or mentally incapacitated from earning a living; and destitute 

parents (provided there are no total dependents). Finally, a person can establish him or herself as 

actually dependent on the deceased employee. 

5.3 



No, however, if indemnity benefits accrued prior to death, the estate may file a claim for these. 

5.4 



describe. 

Death benefits of a spouse terminate upon the death or remarriage of the spouse. Any such amounts 

payable to the spouse but for the death or remarriage are then divided among the children or other 

dependents in the porportion they receive compensation. 

6.0 


jurisdiction? 


Generally, no. The Commission may order vocational rehabilitation, but it is not often done.

6.1 



When a claimant is under an award and the employer wishes to reduce or terminate benefits, it will 

need to provide selective employment to do so. This is generally done by the pre‐injury employer 

offering work or finding new work through vocational rehabilitation. 

6.2 

Generally, what types of benefits are paid for The carrier must pay for vocational rehabilitative services it desires or is otherwise ordered to pay. 

vocational rehabilitation? Are these provided by Benefits pursuant to any outstanding award continue unless the employer can prove a refusal to 


cooperate with vocational rehabilitation. 

6.3 

7.0 


Under the Act, the employee may not be terminated solely because of the work injury. 




which are eligible for a second injury fund While Virginia has a second injury fund, it is almost never used. 

recovery. 

7.1 



The statute of limitations will depend on the nature of the civil action. Generally, personal injury actions 

have a two year statute of limitations in Virginia. 

7.2 

Describe the statute regarding our right to For injuries prior to July 1, 2004, the employer/carrier must intervene in the civil suit to protect its 

pursue a subrogation recovery. Does the statute subrogation interest. For injuries after that date, the lien is created when the employee makes a claim 

give preference to our lien when a third party against his or her employer. The employer need only put the employee on notice of the lien. Subject to 


the employer's share of attorney's fees, the lien has priority. 

7.3 



The employer will recover its lien, less its pro rata share of attorney's fees. 

7.4 

8.0 






If the recovery exceeds the lien, then the employer will need to file an Application with the Commission 

seeking an offset against any future entitlements the employee may have. Until the recovery is 

exhausted, the employee will only be entitled to a percentage of each future entitlement, equal to the 

ratio the total attorney's fees and costs bear to the total third‐party recovery. 


The employer/carrier may not medically manage a claim. An employee, however, is required to select a 

treating physician from a panel of physicians offered by the employer, assuming such is timely offered 

and validly constituted. 

8.1 

Generally, the employer is entitled to one IME per year per speciality. Anything further must be 


approved by the Commission. In terms of scheduling, the Commission generally requires at least one 


week's notice of the IME and generally denies attempts to schedule an IME more than 50 miles or an 


hour from the employee's residence. 

8.2 




No. 

8.3 




Virginia is a non‐fee schedule state and there is substantial litigation among employers and health care 

providers over the level of reimbursement. In addition, the claimant must go to an authorized physician 

or run the risk of being personally responsible for the medical bill. 



Physician‐patient priviledge is waived upon filing a workers' compensation claim. If the medical 

provider is willing to speak with the employer/carrier or its reprentative, there is no law prohibiting him 

or her from doing so. 



Foreign injuries are only covered when the accident would otherwise be compensable under the Act, 

the contract of employment was made in Virginia, and the employer's place of business is in Virginia 

(provided the contract of employment was not expressly for service exclusively outside of Virginia). 


9.2 Sole Remedy The rights and remedies provided by the Act are the exclusive remedies available against the employer.


Yes. Virginia allows for subpoenas of medical records (pre‐ and post‐injury) as well as depositions of 

medical providers. Indeed, even informal conferences with medical providers are allowable (and 

common). 

9.4 Adjuster residency requirement? None. 

9.5 



Yes. There are separate remedies for bringing, prosecuting or defending without reasonable grounds; 

unreasonably delaying payments without reasonable grounds; and filing an Application for Hearing in 

bad faith. Remedies for these include assessing the whole cost of the proceeding, including a 

reasonable attorney's fee, interest at the judgment rate, and a 10% penalty, depending on which 

offense was committed.

2102 Cheat Sheets and Help Sheets - Workers' Compensation ...

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