Yes, you can. However, receiving vacation pay in addition to workers’ compensation benefits can create complications in your claim. The workers’ compensation carrier will likely take a section 243 credit against your Georgia workers’ compensation benefits nullifying any net gain. Workers’ compensation benefits are not taxable, however, vacation pay is. The employer will likely to argue that vacation pay is a wage continuation plan as set forth in the code section below. The employer’s argument may be strengthened if the vacation pay is part of flexible time off which includes both days off for sickness or vacation.
O.C.G.A. § 34-9-243 (2012) provides:
§ 34-9-243. Effect of payments made when not due; employer credit or reduction for employer funded payments pursuant to disability plan
(a) The payment by the employer or the employer’s workers’ compensation insurance carrier to the employee or to any dependent of the employee of any benefit when not due or of salary or wages or any benefit paid under Chapter 8 of this title, the “Employment Security Law,” during the employee’s disability shall be credited against any payments of weekly benefits due; provided, however, that such credit shall not exceed the aggregate amount of weekly benefits due under this chapter.
(b) Except as otherwise provided in this Code section or in a collective bargaining agreement, the employer’s obligation to pay or cause to be paid weekly benefits under Code Section 34-9-261 or 34-9-262 shall be reduced by the employer funded portion of payments received or being received by the employee pursuant to a disability plan, a wage continuation plan, or from a disability insurance policy established or maintained by the same employer from whom benefits under Code Section 34-9-261 or 34-9-262 are claimed if the employer did contribute directly to such a plan or policy. The employer funded portion shall be based upon the ratio of the employer’s contributions to the total contributions to such plan or policy.
(c) The credit or reduction of benefits provided in subsection (b) of this Code section shall only be made for those amounts which the employee is entitled to, has received, or is receiving during any period in which benefits under Code Section 34-9-261 or 34-9-262 are claimed.
(d) The State Board of Workers’ Compensation shall promulgate rules for establishing proof of the existence of other benefits. The employer, its insurance carrier, and the employee shall freely release information to each other and the State Board of Workers’ Compensation that is material and relevant to the existence of benefits which may be coordinated with entitlements and obligations under this chapter.
(e) The employer or insurance carrier taking a credit or making a reduction as provided in this Code section shall immediately report to the State Board of Workers’ Compensation the amount of any credit or reduction and, as requested by the board, furnish to the board satisfactory proof of the basis for a credit or reduction.
(f) Subsections (a) and (b) of this Code section shall not apply to payments made to an employee under Code Section 34-9-263 for any permanent partial disability.
Do you have questions about your workers’ compensation benefits? Call the Hendon Law Firm, LLC today at (770) 284-3737 to talk about your workers’ compensation claim. Let’s develop a strategy to resolve your claim that works for you and your family.
