Georgia Workers' Compensation Law

Georgia’s workers’ compensation system (O.C.G.A. §§ 34-9-11, 34-9-23)

Georgia’s Workers’ Compensation Act, Chapter 9 of Title 34, makes a trade. An employee injured on the job receives medical care and income benefits without having to prove that the employer was negligent. In return, those benefits are the employee’s exclusive remedy against the employer (O.C.G.A. § 34-9-11(a)). The chapter is meant to provide “a complete and exclusive system and procedure” for resolving disputes over workplace injuries, construed impartially toward employers and employees (O.C.G.A. § 34-9-23). The State Board of Workers’ Compensation and its administrative law judges decide claims under it (O.C.G.A. §§ 34-9-1(1), 34-9-100(a)), and the Commissioner of Insurance regulates the insurance that pays for it.

The standard workers’ compensation and employers liability policy works much the same way in every state. What Georgia’s statute decides is covered here: which employers must carry coverage, who counts as an employee, what injuries are covered, what benefits are paid and when, and how an employer insures the obligation.

Who must carry workers’ compensation (O.C.G.A. §§ 34-9-2, 34-9-120)

Every employer subject to the chapter must insure the payment of compensation to its employees (O.C.G.A. § 34-9-120). Whether an employer is subject turns mainly on size. The chapter does not apply to any person, firm or private corporation “that has regularly in service less than three employees in the same business within this state, unless such employees and their employers voluntarily elect to be bound” (O.C.G.A. § 34-9-2(a)(2)).

So a Georgia business with three or more employees regularly in service in the same business in Georgia must carry workers’ compensation, and a business with one or two may choose to come under the Act. The count looks at the regular workforce, not a single day, and only at employees in Georgia.

The same subsection excludes certain employment regardless of size (O.C.G.A. § 34-9-2(a)(2), (b)):

• Railroad common carriers, in intrastate or interstate commerce. Interstate railroad workers keep their rights under the federal railroad employers’ liability act instead.
• Employment not in the usual course of the employer’s trade, business, occupation or profession, or incidental to it.
• Farm laborers and domestic servants, and their employers.
• Licensed real estate salespersons and associate brokers with written contracts providing that they perform all services as independent contractors.

Public employers have no choice: no municipal corporation or political subdivision, and none of their employees, may reject the chapter (O.C.G.A. § 34-9-3). And no employer can contract its way out. Every contract of service between a covered employer and employee is presumed to be made subject to the chapter (O.C.G.A. § 34-9-7), and no contract, rule or other device may relieve an employer of any obligation the chapter creates, except as the chapter itself provides (O.C.G.A. § 34-9-10).

Employees and exemptions (O.C.G.A. §§ 34-9-1(2), 34-9-2, 34-9-2.1 through 34-9-2.3)

Who is an employee

An employee is every person in the service of another under any contract of hire or apprenticeship, written or implied, except a person whose employment is not in the usual course of the employer’s business. Minors are included even if they are working in violation of child labor laws (O.C.G.A. § 34-9-1(2)). The definition names several people who are not employees: an independent contractor with a written contract who buys a product and resells it, receiving no other compensation, or who provides an agricultural service; an owner-operator as defined in § 40-2-87; and the parties to a franchise agreement under the Federal Trade Commission’s franchise disclosure rule (O.C.G.A. § 34-9-1(2)).

Independent contractors (O.C.G.A. § 34-9-2(e))

Calling someone an independent contractor does not make him one. A person or entity qualifies as an independent contractor only if it meets all three of these criteria (O.C.G.A. § 34-9-2(e)):

1. it is a party to a contract, written or implied, intended to create an independent contractor relationship;
2. it has the right to control the time, manner and method of the work; and
3. it is paid a set price per job or per unit, rather than a salary or hourly wage.

A person who fails any of the three is an employee unless an administrative law judge decides otherwise (O.C.G.A. § 34-9-2(e)). For an agent or underwriter, the test matters at audit. A “contractor” paid by the hour and told when to show up and how to do the work is likely an employee whose payroll belongs on the policy.

Corporate officers and LLC members (O.C.G.A. § 34-9-2.1)

Corporate officers and members of a limited liability company are covered unless they elect to be exempt. The election is made by written certification to the insurer, or to the State Board if there is no insurer, and it takes effect only when filed (O.C.G.A. § 34-9-2.1(a), (c)). The right is limited (O.C.G.A. § 34-9-2.1(a)(1)-(3)):

• A corporation may exempt no more than five corporate officers, and an LLC no more than five members.
• Each exempt officer must be identified by name and by the office held; each exempt member, by name.
• An employer subject to the chapter before filing exemptions stays subject no matter how many are filed. If no covered employees remain, no coverage is required until the employer hires more.

An exempt officer or member may revoke the exemption at any time by the same kind of certification (O.C.G.A. § 34-9-2.1(b)).

Sole proprietors, partners and farm employers (O.C.G.A. §§ 34-9-2.2, 34-9-2.3)

A sole proprietor or partner of a business whose employees are covered, if actively engaged in the business, may elect to be included under the business’s coverage by notifying the insurer, and then has an employee’s benefits and responsibilities (O.C.G.A. § 34-9-2.2). An employer of farm laborers may elect to cover them by written notice to the Board, and may not drop that coverage until the notice is revoked and each affected employee is notified as the Board’s rules require (O.C.G.A. § 34-9-2.3).

Sidenote

Opting out and opting in

Georgia’s elections run in both directions, and the form matters. Corporate officers and LLC members start covered and may opt out, five at most per company, by written certification filed with the insurer (O.C.G.A. § 34-9-2.1). Sole proprietors and partners start excluded and may opt in by notifying the insurer (O.C.G.A. § 34-9-2.2). Employers with fewer than three regular employees are outside the chapter unless they and their employees elect to be bound (O.C.G.A. § 34-9-2(a)(2)).

Statutory employers, staffing firms and joint employers (O.C.G.A. §§ 34-9-8, 34-9-11(c), 34-9-224)

A general contractor cannot escape responsibility by hiring an uninsured subcontractor. A principal, intermediate or subcontractor is liable for compensation to any employee of its subcontractors injured while engaged on the subject matter of the contract, to the same extent as the immediate employer (O.C.G.A. § 34-9-8(a)). The claim goes first against the immediate employer; if that employer is outside the chapter for having too few employees, it may go directly against the intermediate or principal contractor, and the employee may collect full compensation only once (O.C.G.A. § 34-9-8(c)). The rule applies only to injuries on, in or about premises where the principal contractor is doing the work or which it controls (O.C.G.A. § 34-9-8(d)). This is why contractors ask subcontractors for certificates of insurance: an uninsured subcontractor’s injured worker can become the contractor’s claim.

A temporary help contracting firm or employee leasing company is a statutory employer, and the business that uses its workers shares the exclusive remedy protection when either one provides the benefits (O.C.G.A. § 34-9-11(c)). An employee in the joint service of two or more covered employers is compensated by them in proportion to their wage liability (O.C.G.A. § 34-9-224).

Compensable injuries (O.C.G.A. §§ 34-9-1(4), 34-9-17, 34-9-280, 34-9-281, 34-9-242)

Injury by accident arising out of and in the course of employment (O.C.G.A. § 34-9-1(4))

Georgia compensates only injury by accident arising out of and in the course of the employment (O.C.G.A. § 34-9-1(4)). “In the course of” refers to the time, place and circumstances of the work; “arising out of” requires a causal connection to the work. The definition then draws several lines:

• Preexisting conditions. Aggravation of a preexisting condition by a work accident is covered, but only for as long as the aggravation continues to be the cause of the disability.
• Personal attacks. Injury caused by a third person’s willful act directed against the employee for personal reasons is not covered.
• Heart attack and stroke. These are covered only if shown by a preponderance of competent and credible evidence, including medical evidence, to be attributable to the performance of the employee’s usual work.
• Alcoholism and addiction. Alcoholism is not an injury. Drug addiction is not an injury unless it resulted from drugs an authorized physician prescribed to treat the original injury.

Grounds for denial (O.C.G.A. § 34-9-17)

Because the system does not ask who was at fault, an employee’s carelessness does not bar benefits. Compensation is denied only for these causes (O.C.G.A. § 34-9-17(a), (b)):

• willful misconduct, including intentionally self-inflicted injury, or injury growing out of an attempt to injure another;
• willful failure or refusal to use a safety appliance or to perform a duty required by statute; and
• intoxication by alcohol, or being under the influence of marijuana or a controlled substance not lawfully prescribed and taken as prescribed.

The employer has three rebuttable presumptions that intoxication caused the accident: an alcohol concentration of 0.08 grams or more within three hours of the accident; any amount of marijuana or a controlled substance in the employee’s blood within eight hours of the accident; or the employee’s unjustified refusal to submit to a reliable test (O.C.G.A. § 34-9-17(b)(1)-(3)). Otherwise, the burden of proof is on the party claiming the exemption or forfeiture (O.C.G.A. § 34-9-17(c)).

Compare two warehouse workers. One forgets the back brace he was issued and is hurt lifting a box: that is carelessness, and he is covered. Another deliberately removes the guard from his machine and refuses to use it: that can be a willful failure to use a safety appliance, and compensation can be denied.

Occupational disease (O.C.G.A. §§ 34-9-280, 34-9-281)

An occupational disease is treated as an injury by accident (O.C.G.A. § 34-9-281(a)). The employee must prove a direct causal connection between the working conditions and the disease; that the disease followed as a natural incident of exposure by reason of the employment; that there was no substantial exposure outside the employment; that it is not an ordinary disease of life to which the general public is exposed; and that it originated in a risk connected with the employment (O.C.G.A. § 34-9-280(2)). Psychiatric and psychological problems and heart and vascular diseases are not occupational diseases unless they arise from a separate occupational disease, and partial hearing loss due to noise is not one (O.C.G.A. § 34-9-280(2)).

A claim must be filed within one year after the employee knew, or with reasonable diligence should have known, of the disablement and its relationship to the work, and never more than seven years after the last injurious exposure, with a special rule for asbestosis and mesothelioma (O.C.G.A. § 34-9-281(b)(2)).

Injuries outside Georgia (O.C.G.A. § 34-9-242)

An employee injured while working outside Georgia receives Georgia benefits if the accident would be compensable in Georgia, the contract of employment was made in Georgia, and the employer’s place of business or the employee’s residence is in Georgia, unless the contract was expressly for service exclusively outside Georgia. If the employee also receives compensation or damages under another state’s law, total compensation for the injury cannot exceed what Georgia provides (O.C.G.A. § 34-9-242).

Benefits and waiting periods

Georgia pays medical benefits, which start immediately, and income benefits, which replace part of lost wages after a waiting period.

Medical benefits (O.C.G.A. §§ 34-9-200, 34-9-203)

The employer furnishes the medical, surgical and hospital care and other treatment prescribed by a licensed physician that the Board finds reasonably required and likely to effect a cure, give relief or restore the employee to suitable employment (O.C.G.A. § 34-9-200(a)). For injuries on or after July 1, 2013, that are not catastrophic, medical benefits last for a maximum of 400 weeks from the date of injury, with continuing exceptions for maintaining or replacing prosthetic devices and similar items first furnished within that period (O.C.G.A. § 34-9-200(a)(2), (3)). For catastrophic injuries the statute sets no such limit (O.C.G.A. § 34-9-200(a)(1)). A catastrophic injury includes severe spinal cord paralysis, amputation of an arm, hand, foot or leg, severe brain injury, severe burns, blindness, and any injury so severe that the employee cannot perform prior work or any work available in substantial numbers in the national economy (O.C.G.A. § 34-9-200.1(g)).

Medical charges must be paid within 30 days after the employer or insurer receives them with the required reports, or the employer must send written reasons for not paying. Late payments carry add-ons paid to the provider: 10 percent if paid more than 30 but within 60 days after the due date, 20 percent if paid more than 60 but within 90 days, and after 90 days interest at 12 percent per year as well (O.C.G.A. § 34-9-203(c)(1), (3)). The employer is not liable in damages for malpractice by a physician it furnishes, but the consequences of malpractice are treated as part of the work injury (O.C.G.A. § 34-9-203(b)).

Choosing the doctor (O.C.G.A. §§ 34-9-201, 34-9-202)

Georgia lets the employer direct medical care through a panel of physicians (O.C.G.A. § 34-9-201(b)(1)):

• The panel lists at least six physicians or physician groups reasonably accessible to employees; the Board may grant exceptions where more than four are not reasonably accessible.
• At least one panel physician must practice orthopedic surgery, and no more than two industrial clinics may be included.
• The employee may accept the employer’s choice from the panel or choose another panel physician, and may make one change to another panel physician without Board approval.

Instead of a panel, a self-insured employer or an insurer may contract with a certified managed care organization (O.C.G.A. § 34-9-201(b)(2)). Either way, the employer must post the panel or procedures prominently and help employees use them (O.C.G.A. § 34-9-201(c)). If it fails to, the employee may select any physician at the employer’s expense (O.C.G.A. § 34-9-201(f)). A properly posted panel is a cost-control tool, and making sure clients have one is part of a workers’ compensation agent’s service.

The employer may require examination by a physician it designates and pays, and refusal suspends compensation (O.C.G.A. § 34-9-202(a), (c)). The employee also has a right, after an accepted compensable injury and within 120 days of receiving any income benefits, to one examination by a physician of the employee’s choosing, in Georgia or within 50 miles of the employee’s residence, at the employer’s expense (O.C.G.A. § 34-9-202(e)).

Average weekly wage (O.C.G.A. § 34-9-260)

Income benefits are based on the average weekly wage at the time of injury: one-thirteenth of the wages earned in the 13 weeks before the injury if the employee worked substantially all of them; otherwise a similar employee’s wages; and if neither is fair, the full-time weekly wage (O.C.G.A. § 34-9-260(1)-(3)).

The waiting period (O.C.G.A. § 34-9-220)

No income benefits are paid for the first seven calendar days of incapacity, counting the day of injury. Medical benefits are not subject to the waiting period. If the incapacity lasts 21 consecutive days, the first seven days are paid retroactively (O.C.G.A. § 34-9-220).

Sidenote

Seven days and 21 days

An employee who misses ten days of work receives income benefits only for days eight through ten. An employee who misses 21 consecutive days or more is paid for the first seven days too (O.C.G.A. § 34-9-220). Medical care is paid from the first day in either case.

Temporary total disability (O.C.G.A. §§ 34-9-261, 34-9-104(a)(2))

While disability to work is temporarily total, the employer pays a weekly benefit of two-thirds of the average weekly wage, subject to the weekly maximum and minimum stated in the statute (O.C.G.A. § 34-9-261). Those dollar limits are changed by amendment, so check the current text of § 34-9-261 for them. Temporary total benefits are payable for a maximum of 400 weeks from the date of injury; for a catastrophic injury, they continue until the employee’s condition changes for the better (O.C.G.A. § 34-9-261).

A non-catastrophic employee who can work with restrictions but is not working does not keep total disability benefits indefinitely. Once the employee has been capable of restricted work for 52 consecutive weeks, the Board treats that as a change in condition for the better and the benefits become partial disability benefits, and the employee may not receive more than 78 aggregate weeks of total disability benefits while capable of restricted work. The employer must notify the employee on a Board form within 60 days of the release to restricted work (O.C.G.A. § 34-9-104(a)(2)).

Temporary partial disability (O.C.G.A. § 34-9-262)

When the employee returns to work at lower pay, the employer pays two-thirds of the difference between the pre-injury average weekly wage and the weekly wage the employee can earn afterward, subject to a statutory weekly maximum, for no more than 350 weeks from the date of injury (O.C.G.A. § 34-9-262). An employee who averaged $900 a week and now earns $600 on light duty has a $300 weekly difference, so the example benefit is $200 a week, subject to the maximum.

Permanent partial disability (O.C.G.A. § 34-9-263)

Permanent partial disability is disability partial in character but permanent in quality, from the loss or loss of use of a body member or partial loss of use of the body (O.C.G.A. § 34-9-263(a)). It is paid on a schedule, whether or not the employee has lost earnings (O.C.G.A. § 34-9-263(b)(1)): two-thirds of the average weekly wage, subject to the § 34-9-261 limits, for the percentage of loss or loss of use times the scheduled maximum weeks (O.C.G.A. § 34-9-263(c)).

Body member	Maximum weeks
Arm	225
Leg	225
Hand	160
Foot	135
Thumb	60
Index finger	40
Middle finger	35
Ring finger	30
Little finger	25
Great toe	30
Any other toe	20
Traumatic hearing loss, one ear / both ears	75 / 150
Loss of vision of one eye	150
Disability to the body as a whole	300

Ratings are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, fifth edition (O.C.G.A. § 34-9-263(d)). A 20 percent loss of use of a hand, for example, earns 20 percent of 160 weeks, or 32 weeks. These benefits are not payable while the employee is entitled to temporary total or temporary partial benefits (O.C.G.A. § 34-9-263(b)(2)). Loss of any two arms, hands, legs or feet, or permanent total loss of vision in both eyes, creates a rebuttable presumption of permanent total disability (O.C.G.A. § 34-9-263(e)).

Death benefits (O.C.G.A. §§ 34-9-265, 34-9-13)

When a work injury causes death, the employer pays reasonable burial expenses up to the amount the statute sets; if there are no dependents, that is the only compensation (O.C.G.A. § 34-9-265(b)(1)). Wholly dependent survivors receive weekly compensation equal to the temporary total disability benefit, and partial dependents a proportional share (O.C.G.A. § 34-9-265(b)(2), (3)). The statute caps the total paid to a surviving spouse who is the sole dependent (O.C.G.A. § 34-9-265(d)).

A spouse is conclusively presumed wholly dependent, unless the couple had lived separately for 90 days immediately before the accident, which makes the presumption rebuttable. So is a child under 18 or enrolled full time in high school, over 18 and incapable of earning a living, or under 22 and a full-time postsecondary student (O.C.G.A. § 34-9-13(b)). Anyone else must prove dependency on the facts, and only if it existed for at least three months before the accident (O.C.G.A. § 34-9-13(d)). A spouse’s dependency ends on remarriage or a Board finding of cohabitation with economic support, and a spouse’s or partial dependent’s dependency ends at age 65 or after 400 weeks of benefits, whichever provides greater benefits (O.C.G.A. § 34-9-13(e)).

Returning to work (O.C.G.A. § 34-9-240)

An employee who refuses suitable employment loses income benefits, other than permanent partial benefits, during the refusal unless the Board finds it justified (O.C.G.A. § 34-9-240(a)). When the treating physician releases the employee to restricted work and the employer offers a suitable job within the restrictions, an employee who tries it for eight cumulative hours or one scheduled workday, whichever is greater, but cannot perform it for more than 15 working days has benefits reinstated immediately. An employee who tries it for less, or refuses to try, may have benefits suspended when the employer files the Board’s form, and must then prove continuing entitlement (O.C.G.A. § 34-9-240(b)).

Notice, payment and claim deadlines

Notice of the accident (O.C.G.A. §§ 34-9-80, 34-9-12)

The employee must notify the employer, its agent or foreman, or the immediate supervisor of the accident immediately or as soon as practicable. Until notice is given, the employee is not entitled to physician’s fees or to compensation that accrued before the notice. No compensation is payable at all unless notice, oral or written, is given within 30 days after the accident, unless the employee was prevented by physical or mental incapacity or by fraud or deceit, the employer or supervisor knew of the accident, or the Board accepts a reasonable excuse and finds the employer was not prejudiced (O.C.G.A. § 34-9-80).

The employer keeps a record of work injuries and must report to the Board in writing, within ten days after notice, any injury requiring medical or surgical treatment or causing absence from work for more than seven days (O.C.G.A. § 34-9-12(a)). Employers must also post the Board’s summary of employee rights and benefits where employees can see it (O.C.G.A. § 34-9-81.1).

Paying or controverting the claim (O.C.G.A. § 34-9-221)

Income benefits are paid directly to the employee, without an award, unless the employer controverts liability (O.C.G.A. § 34-9-221(a)). The timeline is strict:

• The first payment is due on the twenty-first day after the employer knows of the injury or death, and weekly after that (O.C.G.A. § 34-9-221(b)).
• An employer that controverts must file a notice with the Board stating its grounds on or before that twenty-first day (O.C.G.A. § 34-9-221(d)).
• Benefits payable without an award that are not paid when due carry an added 15 percent, unless the employer filed a notice to controvert or the Board excuses the delay; benefits under an award not paid within 20 days after they are due carry an added 20 percent (O.C.G.A. § 34-9-221(e), (f)).
• An employer paying without an award may later controvert only for a change in condition or newly discovered evidence, unless it files a notice to controvert within 60 days of the due date of the first payment (O.C.G.A. § 34-9-221(h)).

Filing a claim (O.C.G.A. §§ 34-9-82, 34-9-100)

The right to compensation is barred unless a claim is filed with the Board within one year after the injury. If the employer has furnished remedial treatment or paid weekly benefits, the claim may be filed within one year after the last remedial treatment or two years after the last weekly payment. A death claim must be filed within one year after the death (O.C.G.A. § 34-9-82). For injuries on or after July 1, 2007, a claim on which no benefits have been paid stands dismissed with prejudice if no hearing has been held within five years of the alleged injury (O.C.G.A. § 34-9-100(d)(1)).

Hearings, appeals and settlements (O.C.G.A. §§ 34-9-102 through 34-9-104, 34-9-15)

An administrative law judge of the Board hears disputed claims, at a hearing scheduled no sooner than 30 and no later than 90 days after the hearing notice (O.C.G.A. § 34-9-102(a)). The award becomes final 20 days after notice unless a party appeals to the Board’s appellate division within 20 days (O.C.G.A. §§ 34-9-102(f), 34-9-103(a)). A party may seek modification of an award for a change in condition within two years after the last temporary total or partial payment, or within four years for permanent partial benefits only (O.C.G.A. § 34-9-104(b)). No settlement is binding until the Board approves it, and an insurer may not settle on behalf of its insured employer without first giving the employer notice of the terms (O.C.G.A. § 34-9-15(a)).

Exclusive remedy (O.C.G.A. §§ 34-9-11, 34-9-11.1)

The rights and remedies the chapter gives an employee exclude and replace all other rights and remedies of the employee and the employee’s family and representatives, and all other civil liabilities, on account of the injury or death (O.C.G.A. § 34-9-11(a)). The employee may not sue the employer in tort for a covered work injury. The employer may become liable beyond the chapter only by expressly agreeing in writing to specific additional rights and remedies; ordinary contract provisions about safety, legal compliance or liability insurance do not create them (O.C.G.A. § 34-9-11(a)).

The exclusive remedy protects the employer, not everyone. The employee may still sue a negligent third party, such as the driver who rear-ends a delivery truck or the maker of a defective machine, but not a co-employee of the same employer, a person who provides workers’ compensation benefits under a contract with the employer, or, with exceptions, a licensed construction design professional on the project (O.C.G.A. § 34-9-11(a)).

When a third party is liable (O.C.G.A. § 34-9-11.1):

• The employer or insurer has a subrogation lien on the employee’s recovery, up to the disability, death and medical benefits it paid, and may intervene to protect it (O.C.G.A. § 34-9-11.1(b)).
• The lien is recoverable only if the employee has been fully and completely compensated for all economic and noneconomic losses, counting both the workers’ compensation benefits and the third-party recovery (O.C.G.A. § 34-9-11.1(b)). When the third party’s insurance is too small to make the employee whole, the lien yields.
• If the employee has not sued within one year after the injury, the employer or insurer may, but need not, bring the action itself, and must pay the employee anything recovered above its lien (O.C.G.A. § 34-9-11.1(c)).

Insuring the obligation (O.C.G.A. §§ 34-9-120 through 34-9-138)

Three ways to comply (O.C.G.A. §§ 34-9-121, 34-9-154)

A covered employer must secure and maintain full insurance against its liability for compensation in one of three ways (O.C.G.A. § 34-9-121(a)):

1. Insurance from an insurer licensed to write workers’ compensation in Georgia, or from a licensed mutual insurance association formed by a group of employers;
2. Self-insurance, by showing the Board its exposure and its financial ability to pay compensation directly, with any security, indemnity or bond the Board requires; or
3. Membership in a group self-insurance fund, which satisfies the employer’s duty to assure payment of compensation (O.C.G.A. § 34-9-154).

An out-of-state construction employer working in Georgia complies with its home-state policy if that state recognizes Georgia’s extraterritorial provision and gives effect to Georgia employers’ policies (O.C.G.A. § 34-9-121(b)).

What a Georgia workers’ compensation policy must say (O.C.G.A. §§ 34-9-122 through 34-9-125)

Georgia requires the standard workers’ compensation policy, including a provision that the premium be promptly paid (O.C.G.A. § 34-9-122), on a form the Board has approved (O.C.G.A. § 34-9-125). Three statutory clauses protect the injured worker against problems between employer and insurer:

• Notice to the employer is notice to the insurer. The employer’s notice or knowledge of an injury is the insurer’s, and the insurer is bound by awards against the employer (O.C.G.A. § 34-9-123).
• A direct promise to the employee. The insurer agrees to promptly pay all benefits to the person entitled to them, and that obligation is not affected by any default of the insured employer after the injury, including a failure to give notice. The injured person can enforce it in his or her own name (O.C.G.A. § 34-9-124(a)).
• No exemption defense. An insurer that covers an employer not subject to the chapter, or employees ordinarily exempt, may not plead the exemption as a defense (O.C.G.A. § 34-9-124(b)).

Optional deductibles (O.C.G.A. § 34-9-124.1)

Every insurer must offer an optional deductible, disclosed in writing, of $100, $200, $300, $400 or $500, or in $500 increments up to $2,500 per compensable claim; the policyholder chooses one amount (O.C.G.A. § 34-9-124.1(a)). The deductible does not reduce what the worker receives: the insurer pays the full benefit and then seeks reimbursement from the employer, and an employer’s failure to reimburse is treated like nonpayment of premium (O.C.G.A. § 34-9-124.1(b)). Deductible amounts the employer pays may not be counted as benefits paid in a way that harms its experience rating (O.C.G.A. § 34-9-124.1(d)). Self-insurers and group funds are not covered by the section (O.C.G.A. § 34-9-124.1(e)).

Consequences of not insuring (O.C.G.A. §§ 34-9-126, 34-9-18)

Each covered employer must file evidence of compliance with the Board as the Board requires. An employer who refuses or willfully neglects to do so is guilty of a misdemeanor, and when its injured worker files a claim the Board may assess compensation 10 percent greater than the chapter provides, plus a reasonable attorney’s fee for the employee’s representative (O.C.G.A. § 34-9-126). The Board may also impose civil penalties per violation for failing to insure or file proof (O.C.G.A. § 34-9-18(c)).

Self-insurance and group self-insurance funds (O.C.G.A. §§ 34-9-127, 34-9-150 through 34-9-182)

An employer that satisfies the Board of its financial ability receives a certificate of self-insurance for a period the Board fixes, which the Board may revoke after at least 30 days’ notice and a hearing (O.C.G.A. § 34-9-127).

Georgia also authorizes group self-insurance funds, so that members of trade and professional associations, and groups of municipalities, counties, school boards and hospital authorities, can provide workers’ compensation together, lowering costs and encouraging loss prevention (O.C.G.A. § 34-9-150). A sponsoring association must have been organized for at least three years and be domiciled in Georgia, and its members must be in the same or substantially similar businesses (O.C.G.A. § 34-9-151(14), (19)). Members agree to assume and discharge, jointly and severally, all liability arising out of the fund’s operations (O.C.G.A. § 34-9-151(9)).

Two rules matter to a producer. Only a fund’s trustees, officers and administrator, a person holding a valid property and casualty agent’s license or a counselor’s license, or an officer, director or employee of a professional or trade association or of a corporation whose income is exempt under Section 115 of the Internal Revenue Code may solicit membership in a fund (O.C.G.A. § 34-9-155(a)). And a fund is not an insurer for purposes of the Georgia Insurers Insolvency Pool Act (O.C.G.A. § 34-9-177), so a member’s protection if the fund fails comes from the fund and its members’ joint and several liability, not from the Insolvency Pool.

The insurer’s permit (O.C.G.A. §§ 34-9-131, 34-9-132)

Before writing or continuing a workers’ compensation policy, an insurer must obtain a permit from the Board and maintain a claims office in Georgia or designate a Georgia agent authorized to execute instruments for paying compensation; writing coverage without a permit is a misdemeanor (O.C.G.A. § 34-9-131). The Board may revoke a permit if the insurer declines a risk assigned to it while the employer is ready to pay the prescribed premium, fails to pay awards, or is otherwise unqualified (O.C.G.A. § 34-9-132).

Rates and premium (Ga. Comp. R. & Regs. r. 120-2-37; O.C.G.A. §§ 34-9-136, 34-9-137, 33-9-40.2)

The Commissioner’s rule on workers’ compensation rate filings exists to establish competitive rates in Georgia’s voluntary market (Ga. Comp. R. & Regs. r. 120-2-37-.02, -.03):

• Individual filings. Every insurer authorized to write workers’ compensation in Georgia that wants to revise its rates files its own rate filing with the Commissioner, and at the same time files a copy with the rating organization it belongs to or subscribes to (Ga. Comp. R. & Regs. r. 120-2-37-.05(1)).
• The insurer’s own experience. Rates are based on the insurer’s own Georgia experience to the extent it is actuarially credible, and less-than-credible experience may be weighted against the rating organization’s latest filed experience (Ga. Comp. R. & Regs. r. 120-2-37-.05(2)). The filing includes loss ratios, reserves, expenses including commissions and dividends, and investment income (Ga. Comp. R. & Regs. r. 120-2-37-.05(3)).
• One classification plan. All insurers must follow the authorized rating organization’s current classification plan on file with the Commissioner (Ga. Comp. R. & Regs. r. 120-2-37-.06). Insurers compete on rates, but every Georgia employer is classified the same way.
• Plans adopted by reference. An insurer may adopt the rating organization’s experience rating plans, retrospective rating plans, rating factors and premium discount plans by reference (Ga. Comp. R. & Regs. r. 120-2-37-.07).

Georgia also protects employers whose premium depends on an experience modification factor. Before submitting an employer’s statistical data to a rating organization, the insurer must verify it with the employer, providing the data and a boldface statement for the employer’s representative to sign confirming that it was reviewed and that the insurer explained it may affect the premium (O.C.G.A. § 34-9-136(a)). Under the rule, if the employer does not return the disclosure within 30 days after it is mailed, the data is deemed accurate, without affecting the employer’s appeal rights (Ga. Comp. R. & Regs. r. 120-2-36-.06(2)). The rating organization must send the employer a copy of its experience modification worksheet (O.C.G.A. § 34-9-136(b)). The mod must take into account amounts recovered from third parties through subrogation, and may not include penalties caused by the insurer’s own conduct (O.C.G.A. § 34-9-137).

An employer certified by the Board as having a qualifying drug-free workplace program receives a premium reduction of not less than 7 1/2 percent once it notifies its insurer in writing (O.C.G.A. § 33-9-40.2(a)).

The Workers’ Compensation Assigned Risk Insurance Plan (O.C.G.A. § 34-9-133; Ga. Comp. R. & Regs. r. 120-2-38)

Because most Georgia employers must insure, there must be a way to insure those the voluntary market rejects. Georgia’s residual market is the Workers’ Compensation Assigned Risk Insurance Plan.

Eligibility. The Commissioner may apportion, pro rata, any rejected workers’ compensation risk where four insurers authorized to write workers’ compensation have refused in writing to issue the policy, or the applicant’s agent confirms those refusals in writing to the four insurers; the Plan then immediately assigns an insurer (O.C.G.A. § 34-9-133(a)). Under the rule, the rejections must have occurred within 75 days before the application, and only an employer in good faith entitled to insurance may apply; one that knowingly refuses reasonable safety requirements, or owes an assigned carrier premium not in bona fide dispute, is not (Ga. Comp. R. & Regs. r. 120-2-38-.09(1)).

Categories. Rejected risks are separated into those rejected for insufficient prior workers’ compensation experience, for factors other than loss experience, and for poor loss experience (O.C.G.A. § 34-9-133(a)). The rule calls these Groups 1, 2 and 3; a Group 3 risk has an experience modification greater than 1.0 (Ga. Comp. R. & Regs. r. 120-2-38-.04(12)-(14)).

Labeling and participation. Every Plan policy must show “Georgia Workers’ Compensation Assigned Risk Plan” in bold letters on the declarations page (O.C.G.A. § 34-9-133(c)(1)). Every authorized workers’ compensation insurer must participate fully as a condition of doing business in Georgia, with assignments distributed by each insurer’s share of Georgia workers’ compensation and employers liability premium (Ga. Comp. R. & Regs. r. 120-2-38-.07). An insurer that voluntarily writes a risk currently in the Plan earns credits against its Plan participation (O.C.G.A. § 34-9-133(c)(5)(C)), and a risk taken out of the Plan is cancelled pro rata (Ga. Comp. R. & Regs. r. 120-2-38-.09(12)).

Merit rating. A Plan policyholder that is not experience rated and pays an annual premium of less than $5,000 is merit rated on its lost-time claims in the most recent year (O.C.G.A. § 34-9-133(j)(1)-(3)):

Lost-time claims in the most recent year	Adjustment
None	12 1/2 percent credit
One	No credit or debit
Two or more	5 percent debit

The insurer must tell the policyholder the adjustment and the reason in writing within 90 days of the policy’s effective date (O.C.G.A. § 34-9-133(j)(4)).

Service, renewal and commissions. An assigned carrier must give Plan policyholders the same type and level of service as its voluntary business, and may not deny a safety or loss control program a policyholder requests, though it need provide only services reasonably commensurate with the policyholder’s exposures, loss experience and size (Ga. Comp. R. & Regs. r. 120-2-38-.09(18), (19)). It sends a renewal proposal at least 45 days before expiration and completes the final audit within 90 days after expiration or cancellation (Ga. Comp. R. & Regs. r. 120-2-38-.09(9), (14)). The producer’s commission slides with premium: 8 percent of the first $1,000, 5 percent of the next $4,000, 3 percent of the next $95,000 and 2 percent of premium over $100,000 (Ga. Comp. R. & Regs. r. 120-2-38-.09(13)).

Fraud and penalties (O.C.G.A. §§ 34-9-18, 34-9-19, 34-9-24)

False statements made to obtain or to deny benefits are punished on both sides of a claim. A person who knowingly and intentionally makes a false or misleading statement to obtain or deny a benefit or payment may be assessed a civil penalty for each violation (O.C.G.A. § 34-9-18(b)), and a willful false statement for that purpose is also a misdemeanor (O.C.G.A. § 34-9-19). The Board’s fraud and compliance unit investigates fraud and noncompliance and refers criminal matters to prosecutors, and a person who reports suspected fraud to the Board without fraud or malice is protected from civil and criminal liability (O.C.G.A. § 34-9-24(a), (d)).

Lesson summary

• An employer with three or more employees regularly in service in the same Georgia business must insure; smaller employers may elect in. Railroad carriers, farm laborers, domestic servants and employment outside the usual course of business are excluded (O.C.G.A. § 34-9-2(a)).
• A worker is an independent contractor only if all three statutory criteria are met (O.C.G.A. § 34-9-2(e)). Up to five corporate officers or five LLC members may opt out by written certification filed with the insurer, and sole proprietors and partners may opt in (O.C.G.A. §§ 34-9-2.1, 34-9-2.2). A contractor is liable for its uninsured subcontractors’ employees (O.C.G.A. § 34-9-8).
• Willful misconduct, willful failure to use a safety appliance and intoxication bar benefits (O.C.G.A. § 34-9-17). Notice is due within 30 days, and a claim must be filed within one year (O.C.G.A. §§ 34-9-80, 34-9-82).
• Income benefits begin after a seven-day waiting period, paid retroactively if incapacity lasts 21 consecutive days, and the first payment is due on the twenty-first day after the employer knows of the injury (O.C.G.A. §§ 34-9-220, 34-9-221(b)).
• Total disability pays two-thirds of the average weekly wage, subject to the statutory maximum, for up to 400 weeks unless catastrophic; partial disability pays two-thirds of the wage loss for up to 350 weeks; permanent partial disability follows a schedule (O.C.G.A. §§ 34-9-261 through 34-9-263). Non-catastrophic medical benefits end after 400 weeks, and the employee chooses from a posted panel of at least six physicians (O.C.G.A. §§ 34-9-200, 34-9-201).
• Workers’ compensation is the exclusive remedy against the employer, but third parties can be sued, and the subrogation lien applies only if the employee is fully compensated (O.C.G.A. §§ 34-9-11, 34-9-11.1).
• Employers comply through a licensed insurer, Board-approved self-insurance or a group self-insurance fund; soliciting fund membership requires a property and casualty agent’s or counselor’s license, unless an exception applies (O.C.G.A. §§ 34-9-121, 34-9-155).
• Each insurer files its own Georgia rates on a common classification plan (Ga. Comp. R. & Regs. r. 120-2-37), and employers rejected in writing by four insurers are placed through the Workers’ Compensation Assigned Risk Insurance Plan (O.C.G.A. § 34-9-133).