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Concurrent, Similar Employment

Burdine & Brown Jan. 23, 2020

I represented a gentleman who was a cook in a large School district. He sustained a serious low back injury in November of 2017. The school district said they were not going to consider the workers' compensation because when the employer took my client to the ER, the employer said to the triage nurse “we all agree this is not a workers' compensation injury”. My client was taken to the hospital and provided medical treatment and did not think twice about the comment.

Three weeks later, when my client did not receive any WC disability benefits because he has not been at work for the last three weeks, he asked his supervisor “where is the money?” The school district told him they denied his claim for this one statement he did not even make!

Mr. “X” asked me to represent him in his workers' compensation claim. It took me six months to unravel the emergency room records and get to the bottom of things. We took three depositions, obtained an MRI and an orthopedic opinion evaluation and treatment on a lien and prepared the case for a hearing in front of the judge. The other party asked for a mediation before the court date and we were able to settle the case.

During the litigation, my client had a side business where he would cook healthy lunches for this brother and a work crew. They were construction workers on a high rise building nearby. My client asked me if he can continue this work since it was part time and very light work while he was pursuing his workers' compensation claim. He did not want for his workers' compensation claim to be affected if he was working. It was a good question to ask me. I told him he could continue to do so because this activity will be considered concurrent similar employment since his full time job was cooking. Both jobs were similar in nature.

Georgia has a very old and archaic law that could be easily modified. Now the law says that the worker can receive an increase in his weekly workers' compensation benefits based upon the concurrent similar employer. This limits the worker to similar work. The work similar should be taken out of the law. Many of us may have part time jobs to supplement our income. But that part time job may not be similar work due to our similar work of our “day time” job. If not, we would not be eligible for an increase of workers' compensation benefits. Also, whether or not the part time work was similar, but it was performed prior to the job injury, the employer could not reduce the workers' compensation benefits because the worker had this job prior to the injury.

The happy ending here, is that my client used the settlement money to buy a food truck and serve his healthy foods to his local community. It took six months to reach this happy ending to what it seemed to be a strange beginning to his workers' compensation case.