by Kenneth A. David, Esq.

Several recently reported cases in other states have addressed the extent that employers are protected by the exclusive remedy provision, which has shielded employers from claims for damages outside the workers’ comp system when there is a compensable workers’ comp claim. In Nebraska, a court held that OSHA violations based on a finding of willful violation of safety regulations did not allow for a separate cause of action in civil court. On the other hand, in Illinois, a court upheld an award of over 4 million dollars to an employee in a workers’ comp retaliation lawsuit arising out of a dispute over light duty work.

Georgia courts have consistency held that if a claim is accepted as compensable then the claimant is barred from bringing any other action against the employer, insurer, or TPA outside of the workers’ comp system. This prevents a claimant from suing an employer for negligence or even intentional conduct resulting in an injury to an employee. It also protects these parties from being sued outside of workers’ comp for action (or inaction) in the administering of the comp claim itself.

The ALJ does have the power to issue penalties, fines and attorney’s fees related to actions or inactions by these parties, but there is not a separate cause of action which a claimant could bring in civil court. In a California case, a judge issued over $100,000 in penalties after finding there was an unjustified delay by the TPA in approving treatment. Georgia law allows the Board to impose penalties of up to $1,000 per violation and in some circumstances, it can be even higher.