Thomas L. Walker

Tip of the week - Although Title VII of the Civil Rights Act of 1964 does not protect employees from discrimination based on sexual preference or being transgender, the Equal Employment Opportunity Commission (EEOC) is now taking the position that discrimination because of sexual preference or being transgendered is discrimination based upon a person's sex which is a protected class under Title VII. A federal case in Illinois (sexual preference) and another federal case in Pennsylvania (transgender) are testing these new legal theories that expand protection under Title VII. If you feel you have been discriminated against because of sexual preference or being transgendered, you must file a charge of discrimination with the EEOC within 180 days from the date of the discrimination or risk losing your claim.

Tip of the week - if an employer has not paid minimum wage or overtime, thus violating the Fair Labor Standards Act (FLSA), the statute of limitations is two years. However, the statute of limitations is three years for willful violations. Almost every violation of the FLSA will be considered a willful violation.

Tip of the Week - An employee who believes he or she has been discriminated against by their employer or by a potential employer because of their race has two potential causes of action. The more familiar cause of action for race discrimination is Title VII of the Civil Rights Act of 1964. As discussed earlier, the employee must first file a charge of discrimination with the EEOC in order to pursue this claim. In Georgia, the charge must be filed within 180 days of the discr...iminatory event. And, the employee must obtain a right to sue letter from the EEOC to pursue the claim in court. A lawsuit must be filed within 90 days of receiving the right to sue letter or the right to bring the lawsuit will be lost. The other, and older, cause of action for race discrimination is section 1981 of the Civil Rights Act of 1866. Unlike Title VII, an employee does not need to file a charge with the EEOC or obtain a right to sue letter to bring a claim under section 1981. However, a four year statute of limitations applies. In addition, the caps on compensatory and punitive damages which apply to Title VII claims do not apply to section 1981 claims. Finally, section 1981 applies to all non-federal employers. Title VII only applies to employers with 15 or more employees. All disparate treatment claims can be brought under section 1981. But, disparate impact claims can only be pursued under Title VII. When pursuing an action for race based discrimination against an employer or potential employer due to dispatate treatment, the employee should bring claims under both Title VII and section 1981.

Tip of the week - in Georgia, an employee who thinks he or she has been discriminated against in the workplace based on race, ethnicity, religion or sex who wants to file a claim of discrimination under Title VII of the Civil Rights Act of 1964, must file a charge with Equal Employment Opportunity Commission (EEOC) within 180 days of the discriminatory act. If the employee fails to file the charge within the 180 days, he or she will lose the ability to pursue the claim.

Tip of the week - it is possible to make a change of treating physician to a doctor not on the posted panel by agreement between the employee and the employer/insurer. If the two sides cannot agree, either can file a request for a change of physician with the State Board of Workers' Compensation. When making that request, I think it is important to brief the State Board and attach records showing why the change is appropriate to the care of the employee. While not a State Bo...ard requirement, I think it is critical to contain an opinion from the doctor to whom you want to change which outlines what he or she will do different or how he or she can help. The employer can always obtain this opinion through an IME. And, in compensable cases, the employee has a right to a one time IME at the employer/insurer's expense. Thereafter, the employee would have to pay for such exams. See more

Tip of the week - Last week, I discussed the requirements of the posted panel of physicians for a traditional panel. This week, I will discuss the most common circumstances where an employee is not bound to seek treatment from a panel doctor. First, if an employer/insurer controvert a claim, the employee is not bound to the panel. Second, if an employer fails to post the panel or fails to place it in a location employees can access, the employee is not bound to the panel.... Third, if the employer fails to explain the purpose of the panel, the employee might not be bound to it. Fourth, if the employer does not have a valid panel because it did not comply with the requirements for the panel, the employee might not be bound to it. Finally, if the doctors on the panel refuse to treat the employee, the employee might not be bound to the panel. The clearest reason not to be bound by the panel is when the employer/insurer controvert the claim or the employer fails to have a panel. When an employee does not want to be bound to the panel for one of the other reasons, it may become a question of fact for the administrative law judge.

Tip of the week - A traditional posted panel of physicians shall consist of at least six physicians or professional associations or corporations of physicians who are reasonably accessible to the employees, but is not limited to the minimum of six. However, should a physician on the panel of physicians refuse to provide treatment to an employee who previously has received treatment from another panel physician, the employer/insurer, as soon as practicable, shall increase ...the panel for that employee by one physician for each such refusal. The Board may grant exceptions to the required size of the panel where it is demonstrated that more than four physicians or groups of physicians are not reasonably acessible. The physicians selected under this subsection from the panel may arrange for any consultation, referral, and extraordinary or other specialized medical services as the nature of the injury shall require without prior authorization from the Board; provided, however, that any medical practitioner providing services as arranged by a primary authorized treating physician under O.C.G.A. 34-9-201(b)(1) shall not be permitted to arrange for any additional referrals. The minimum panel shall include an orthopedic physician, and no more than two physicians shall be from industrial clinics. Further, this panel shall include one minority physician. The minority physician so selected must practice within the State of Georgia or be reasonably accessible to the employee's residence. Minority shall be defined as a group which has been subjected to prejudice based on race, color, sex, handicap or national origin, including, but not limited to Black Americans, Hispanic Americans, Native Americans or Asian Americans. Failure to include one minority physician on the panel does not necessarily render the panel invalid. The Board reserves the right to allow exceptions when warranted. The employee may make one change from one physician to another on the same panel without prior authorization of the Board. The party which challenges the validity of a panel shall have the burden of proving that the panel violates the provisions of O.C.G.A. 34-9-201 and Board Rule 201. The employee is not restricted to the panel when it is valid. If the panel is invalid, the employee can choose any physician he wants. Thereafter, the employee could make one change without agreement by the employer or Board order. The rules regarding specialized treatment remains the same.

I hope everyone has a safe and happy New Year's Eve. And, remember, if you are driving at night, stick to the right. On multi lane roads such as LaVista or Lawrenceville Hwy, a wrong way driver will most often be in the left lane. Staying in the right lane could save your life. It saved mine back in 1992 on Ga316.

Tip of the week - Generally, an employee must seek treatment from the posted panel of physicians. The employee, not the employer, gets to make the choice of physicians from the posted panel. The employee also gets to make one change from one physician on the panel to another physician on the panel. In the coming weeks, I will discuss the requirements for a valid panel and when an employee is not bound to treatment from the panel.

Tip of the week - after reporting the work injury to the employer, the employee must file State Board of Workers' Compensation Form WC14 within one year from the date of injury, or within one year from the date of the last payment of remedial treatment or within two years from the payment of income benefits to toll the workers' compensation statute of limitations. Many employees mistakenly believe they have filed a claim by reporting the injury or when the employer/insurer f...ile their Board Form WC1 first report of injury. However, a claim has not been filed until a WC14 has been filed. When an employee is receiving medical treatment or income benefits, it may not seem necessary. However, it costs nothing to file the WC14. The issue arises when an employee has received medical care, gets better but then tries to return to the doctor because the condition has worsened more than a year after the payment of the last treatment. Or, it may arise when an employee,who has worked light duty, is discharged because the employer has no light duty available or has terminated the employee for cause and more than a year has gone by from the date of the payent of the last remedial medical treatment or two years had elapsed from the payment of the last income benefits. See more