September 30, 2019 BY Jasmine Saenz
Workers' Compensation Claimants and Incarceration: Before, After, and Way After Conviction
Workers’ compensation claims and injuries do not exist in a vacuum; they affect real people who often have real problems outside of their work injury. Often, claims professionals are called upon to interpret what an incarceration or conviction means to a claimant who is or could be receiving workers’ compensation benefits. Although the interplay between the workers’ compensation system and the criminal system is complicated, remembering a few general rules can help you make the right decisions.
Innocent Until Proven Guilty
If a workers’ compensation claimant is incarcerated while receiving TTD or TPD benefits, it seems like immediate unilateral suspension should be an option. What could be a clearer change in condition than a person’s removal from the work force due to jail time? However, it is useful to bear in mind that in the United States, parties are considered to be innocent of crimes until proven guilty, and the reality is it can take a very long time to decide that guilt or innocence. A workers’ compensation claimant’s benefits cannot be suspended until that claimant is actually convicted of the crime for which they were incarcerated, and until that conviction can actually be shown with evidence such as certified court records.
There are many ways to try to work around this waiting game for a conviction. It is tempting to schedule several medical appointments, which the claimant cannot attend, and file a Motion to Suspend Benefits based on failure to comply with medical treatment. Or, it may be tempting to offer a light duty job, if the claimant has restrictions, knowing the claimant will not be able to attend their start date. Unfortunately for the claims specialist awaiting an adjudication, Georgia law has held that an employee’s incarceration pre-adjudication justifies both a refusal to cooperate with medical treatment and a refusal of suitable employment. See Sargent v. Brown, 186 Ga. App. 890 (1988); Howard v. Scott Housing Sys., Inc., 180 Ga. App. 690 (1986). Although not specifically addressed, this line of cases also suggests that a claimant who may be receiving benefits while performing a thorough job search (satisfying their “Maloney” burden) would also continue to be entitled to benefits and excused for searching for the period of their incarceration.
If an incarcerated claimant is actually convicted, or “proven guilty,” suspension can be done unilaterally and immediately using certified records of the conviction as evidence. Still, even once the verdict is in and the dust has settled, the claimant is entitled to benefits for the entire period of incarceration prior to adjudication. Scott Housing Systems v. Howard, 256 Ga. 675 (1987); Mize v. Cleveland Express, 195 Ga. App. 56 (1990). This holds true even if the time period between incarceration and adjudication is long; and it even holds true if the claimant is given credit for time served, and thus essentially was doing time as if they were guilty since day one in jail.
Probation Violations: The Due Process Blues
The rule about adjudication of guilt makes it seem as if a parole violation is a no-brainer: the claimant was already judged guilty once, and now they are just continuing their existing sentence for a previous crime. It is true that serving time for a parole violation is considered to be post-conviction, and benefits can be suspended based on this conviction for a previous crime, as discussed in the Sargent case. However, every person is afforded the right to due process under the law, meaning they are protected from the possibility that their probation was revoked by mistake, or for a crime or offense they did not commit. Before a decision to revoke probation is made, the probationer must be accorded due process, including notice and an opportunity to be heard. State v. Brinson, 248 Ga. (1981), as cited in Sargent.
Waiting until a probation revocation hearing is held and adjudicated helps lessen the risk that a claimant is punished for an offense they did not commit. In the Sargent claim, the claimant was incarcerated for committing a crime, a violation of his probation agreement. However, at the hearing which would have revoked that probation and reinstated the claimant’s sentence for his original crime, the claimant was found to be not guilty of the second alleged crime. All charges were dropped and he was found not to have violated his probation after all. To the courts, suspending the workers’ compensation benefits to which he was already entitled based on actions he was ultimately found to be innocent of would have been unfair. For that reason, the clear rule put forth by the Court of Appeals in Sargent is that a judicial determination must be made that a probation revocation has in fact occurred before a claimant’s benefits may be terminated.
We’re Halfway There: Employing Transitional Center Inmates
All of the above is well and good for employees convicted after a workers’ compensation injury, but what about those convicted prior to an injury, and currently still “serving time” in a transitional center (also known as a “halfway house”) or other work release program? It seems clear from the statute that these workers cannot be employees for the purposes of the workers’ compensation code. O.C.G.A. §34-9-1(2) states, in relevant part:
“Inmates or persons participating in a work release program, community service program, or similar program as part of the punishment for violation of a municipal ordinance pursuant to Code Section 36-32-5 or a county ordinance or a state law shall not be deemed to be an employee while participating in work or training or while going to and from the work site or training site”
It sounds clear, and in some cases, it is clear. Transitional center employees are still inmates, and therefore, wards of the jail or prison system from whence they came. Boom: no employment relationship, no workers’ compensation coverage. Easy.
Many workers’ compensation awards make it clear that most judges will find this persuasive and find that a transitional center inmate is not an employee. In that case, the analysis stops there. However, there is a lot that could go wrong here.
Unfortunately, it is very easy and very common for employers to contract away the ability to have transitional center inmates not covered by their workers’ compensation insurance. In fact, the Georgia Department of Corrections may present prospective employers of inmates with a “Transitional Center Employment Agreement” giving strict rules about what inmates can or cannot do. This makes a lot of sense from a public policy perspective: although these inmate employees are learning to transition back into public life, they are still serving a sentence. To this end, it makes sense to ensure inmate employees are not allowed to leave the premises, take unscheduled breaks, or receive visitors.
However, public policy also dictates that unnecessary costs not be placed onto the Georgia Department of Corrections’ already heavily burdened system. For this reason, Employment Agreements likely also include a specific requirement for the employer to maintain Workers’ Compensation Insurance to cover inmate employees, and to provide proof of that insurance prior to the employment of any inmates from a Transitional Center. This serves the purpose of preventing prospective employers from using inmate employees to do more dangerous jobs, in addition to saving costs for the Department of Corrections. Employers still get many benefits from employing transitional center inmates, as well: a solid workforce that is willing to do the assigned job and shows up on time as scheduled.
Public Policy Protections
Although there is no specific statutory law and little case law on the tension between transitional center inmate employees and contractual agreements with transitional centers, public policy likely dictates that the contract would prevail in most situations. However, a contract is not always present, or may not be current. As a claims handler, it can be frustrating to try to determine whether a transitional center employee is covered under a workers’ compensation policy. With deadlines to make decisions on claims moving ever faster, investigation into the employee’s status and any agreements the employer have made need to move quickly, and alternate defenses may need to be developed in the event that workers’ compensation coverage is found. Do not hesitate to enlist help or seek advice from counsel when navigating the murky waters of incarcerated claimants and injured transitional center employees.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley