Recent Developments

McRae v. Arby's Restaurant Group, Inc.
Court of Appeals, A11A1021
Decided December 1, 2011

Issue:
Did the Superior Court err in affirming the State Board's removal of the claimant's
requested hearing based on her refusal to authorize her authorized treating physician to
talk to the employer's lawyer without her or her lawyer present? In a 4-3 decision, the
Court Appeals ruled that it was error.

Summary:
The claimant suffered chemical burns to her esophagus after accidentally drinking
lye. The employer accepted the claim as compensable and paid income and medical
benefits. Three years after the accident, the treating physician assessed permanent
impairment of 65% to the body as a whole. The claimant requested a hearing seeking
TTD and PPD.

The employer's attorneys, under O.C.G.A. § 34-9-207 which waives physician-patient
confidentiality in workers' compensation claims, tried to meet with the treating physician.
The doctor refused unless the claimant gave express permission. The employer
filed a motion seeking to remove the hearing from the calendar or issue an order
authorizing the doctor to talk to its lawyers privately. The ALJ ordered the claimant to
give permission. She did not, and the ALJ removed the claim from the hearing calendar
until she did so. The Appellate Division and the Superior Court affirmed.

Before the Court of Appeals, the claimant argued that Georgia law and HIPAA protected
her medical privacy such that she could not be compelled to authorize her treating
doctor to communicate with her employer's representatives outside of her or her
lawyer's presence.

The majority opinion cited a medical malpractice case, Baker v. Wellstar Health Sys.,
288 Ga. 366 (2010), that set forth "dangers associated with ex parte interviews of health
care providers" in litigation. Those dangers included the potential for probing into
irrelevant and possibly sensitive and prejudicial matters, the potential for disclosure of
the doct5or's mental impressions not documented in the records and not disclosed to
the patient, and "the potential for defense counsel to influence the health care provider's
testimony, unwittingly or otherwise, by encouraging solidarity with or arousing sympathy
for a defendant health care provider." The Court of Appeals majority determined that
such "ex parte communications" should be similarly restricted in workers' compensation
cases for the same or analogous reasons.

The Superior Court had held that the privacy restrictions in HIPAA were inapplicable
to workers' compensation claims, because HIPAA expressly permits the disclosure of
medical information governed by HIPAA "as authorized by and to the extent necessary
to comply" with workers' compensation requirements. The Court of Appeals majority
rejected this holding, noting that the Workers' Compensation Act includes no provision expressly requiring a doctor to communicate with an employer's lawyer in the absence
of the claimant and her lawyer.

The majority went on to hold that, whereas O.C.G.A. § 34-9-207 provides for the
disclosure of "all information and records" related to the treatment of the work injury and
related medical history, the term "information includes only 'tangible documentation'".

Three judges dissented and published two dissenting opinions. In the first, Judge
Miller expressed concern that the majority holding has the potential to frustrate the
purpose of the Workers' Compensation Act. She pointed out that O.C.G.A. § 34-9-207
was intended to streamline the process and give employers easier access to medical
information. Accordingly, the dissent concluded, procedures in workers' compensation
cases are not akin to the civil litigation procedures involved in a medical malpractice
action, which were the subject of Baker, supra. The dissent stated that the majority
ruling may result in delays adversely affecting both employers and employees.

In the second dissent, Judge Blackwell disagreed with the majority's interpretation
of "information" as including only tangible things. Asserting that words in statutes
are to be given their ordinary signification, Judge Blackwell wrote that "'information'
is generally understood to mean knowledge or data that is communicated to another,
regardless of whether the knowledge or data has been memorialized in any tangible
medium or exists only in the memory and voice of the person communicating it."

The Court's holding prohibits the State Board of Workers' Compensation from denying
a claimant a hearing for the claimant's refusal to authorize his doctors to converse
with the employer's lawyers without the claimant's or the claimant's lawyer present.
Although the opinion appears to refer only to employer's lawyers, it only naturally
extends to employers and their other representatives, since the confidentiality waiver
found in O.C.G.A. § 34-9-207 does not distinguish between who (the employer or its
lawyers) is gathering information from the doctors.

The holding does not necessarily preclude such a meeting. If a treating doctor agrees
to discuss a case with the employer or the employer's lawyers in the absence of the
claimant and his lawyer, he may do so if he feels it is appropriate and does not violate
any privacy restrictions. We can expect, however, that claimants' lawyers will become
more aggressive in telling doctors that they may not engage in such communication.
Even without "advice" from claimants' lawyers, some doctors may elect to take the more
cautious route and decline to engage in such communication without the claimant's
express permission.

This case involved what might be described as the extreme end of the information
disclosure spectrum: an employer's lawyer meeting with a treating doctor. However,
it has ramifications throughout the spectrum, including communications between
a risk manager and a doctor's staff about light duty availability, communications
between a scheduling nurse and an adjuster about the need for diagnostic tests,
or communications between a physician's assistant and an adjuster about why a given prescription drug is necessary. If the result of this case is to prohibit oral
communications about treatment and opinions, there will be significant adverse effects
on both employers and claimants.

The case may be reviewed by the Supreme Court. The Court of Appeals' holding
may be corrected or refined by the Supreme Court or through litigation in subsequent
cases. It can be argued that this case does not prohibit employers and their lawyers
from conversing with a claimant's doctor if the doctor is willing to do so. If a doctor is
not willing to do so without the claimant's permission, the Board cannot require that the
claimant give that permission as long as this ruling stands.

We take the position that this case does not impact our practices with regard to written
communication to and written responses from claimants' doctors. Of course, claimants'
lawyers are likely to disagree, and we can expect more litigation.

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A10A1981 Southern Concrete/Watkins Associated Indus. Et. al. v. Spires
Decided: March 22, 2011

Issue: The parties agree that the employer must provide the catastrophically
injured claimant with a wheelchair-accessible home. The issue at hand is
whether this home must be built on the claimant's property with title to the
claimant in fee simple or whether the employer may build the home on an
alternate site and give the claimant a life estate.

Decision: The claimant, a welder, was catastrophically injured while constructing
a bridge. The claim was accepted as compensable and catastrophic in nature
due to paraplegia. The employer/insurer modified the claimant's house, and
he lived there until it became uninhabitable due to a leaky roof and sewage
issues. Both parties agreed to provide the claimant with a new accessible home;
however, they could not agree as to where the home should be built or the
manner in which it should be titled.

The Administrative Law Judge found that the employer/insurer were required to
build the wheelchair accessible home on land owned by the claimant and give
title to him in fee simple. The Appellate Division reversed and found that the
employer was not obligated to build on the claimant's land. It further found that
providing the claimant a life estate in a suitable home satisfied the requirements
of Rule 200.1. The rule requires the employer to provide housing that is
reasonable and necessary for the employee to return to the least restrictive
lifestyle possible. Granting title to the claimant is not necessary to such end.

The Superior Court reversed and adopted the findings of the Administrative
Law Judge. The Court of Appeals reversed the Superior Court and adopted the
findings of the Appellate Division. The findings of the Board must be affirmed by
the Superior Court and Court of Appeals when supported by any evidence on the
record. Here, there was evidence to support the Board's Award. Therefore, the
Superior Court should have upheld the Board's findings.

________________________________________

MEMORANDUM

RE: J&D Trucking, et al. v. Martin, ______ Ga. App_____, 2011 (June 21,
2011)

ISSUES
Did the Superior Court err in reversing the Appellate Division and assessing
attorneys' fees? The Court of Appeals held that there were not sufficient findings
of fact made by the Appellate Division and remanded the case for additional
findings.

SUMMARY
The claimant, the sole-proprietor of J&D Trucking, was injured at work. The
claim was accepted as medical only, and medical treatment was provided. The
claimant underwent surgery and became disabled from May 26, 2009 to July 13,
2009. The employer/insurer requested a hearing contending that because the
claimant had failed to prove he was receiving any wages, there was no basis
under O.C.G.A. § 34-9-260 for calculation of average weekly wage and payment
of temporary total disability benefits. Martin countered that he had proved his
average weekly wage and was entitled to TTD benefits, as well as assessed
attorneys' fees, based on the employer's failure to comply with O.C.G.A. § 34-9-
221.

The Administrative Law Judge found that the claimant's average weekly wage
could be determined pursuant to O.C.G.A. § 34-9-60(1) as the claimant had
worked for substantially the whole of 13 weeks immediately preceding the injury.
The claimant showed gross earnings from J&D Trucking of $8,458.28 per week
and an average net income of $1,541.32 per week after the deducting business
expenses.

The claimant deposited all of the gross income from the business into one
checking account from which he paid both business and personal expenses. The
employer/insurer contended that because there were no checks issued to Martin,
there was no proof of wages earned. The ALJ found that there was evidence
sufficient to entitle the claimant to temporary total disability benefits of $500.00
a week for the agreed-upon period of disability. The ALJ also found pursuant to
O.C.G.A. § 34-9-108(b)(2), that the employer failed, without reasonable grounds,
to comply with the provisions of O.C.G.A. § 34-9-221 requiring the timely
payment of income benefits or the filing of a Notice to Controvert and assessed
attorneys' fees against the employer/insurer.

The employer/insurer appealed to the Appellate Division of the State Board of
Workers' Compensation which found that the ALJ correctly ruled that claimant
proved his average weekly wage and accepted the ALJ's Findings of Fact with
respect to the average weekly wage issue. The Appellate Division found that the
ALJ had no discretion to assess attorneys' fees because the employer/insurer did

not violate the provisions of O.C.G.A. § 34-9-221 without reasonable grounds,
and that the employer/insurer reasonably defended the determination of the
claimant's average weekly wage and what amount, if any, of temporary total
disability benefits were due.

Claimant appealed to the Superior Court of Grady County, which reversed the
Appellate Division and assessed attorneys' fees against the employer/insurer
finding that O.C.G.A. § 34-9-221 required the assessment of attorneys' fees
since there was no controvert of benefits filed.

The claim was appealed by the employer/insurer to the Court of Appeals,
which held that, while the Appellate Division may substitute its own findings of
fact for those of the ALJ and enter an Award accordingly, here, the Appellate
Division rejected the Administrative Law Judge's findings but failed to make any
substituted findings of fact on the issue of attorneys' fees. Because no findings
of fact were made, it was impossible for the Superior Court to determine if any
evidence existed to support the findings of the Appellate Division that attorney
fees should not be assessed.

The Court of Appeals, therefore, remanded the case to the Superior Court to be
remanded to the Appellate Division of the State Board of Workers' Compensation
for findings of fact on the issue of whether or not attorneys' fees should be
assessed.

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CROSSMARK, INC. et al. v. STRICKLAND
Court of Appeals, A11A0478
Decided June 27, 2011

Issue:
Did the Superior Court err by affirming an award of benefits to the
workers' compensation claimant? The Court of Appeals ruled there was no error
and affirmed the award.

This was the second time this case was considered by the Court of Appeals, and
the procedural history is complicated. In the first case, Strickland v. Crossmark,
268 Ga. App 568 (2009), the Court found that the Superior Court lacked
jurisdiction to review an Appellate Division order remanding the case to an
Administrative Law Judge (ALJ) since it was not a final award.

The claimant reported a back injury at work and began receiving temporary total
disability benefits. Crossmark then terminated benefits and filed a notice of
intention to controvert the claim. When the ALJ heard the case originally, the
parties stipulated that Crossmark had timely notice of the claim, benefits were
paid for a time, and the claim was then controverted. The ALJ denied the claim
as the claimant failed to establish by a preponderance of evidence that her injury
arose out of and in the course of her employment.

The claimant appealed to the Appellate Division. In addition to arguing that the
ALJ erred in finding that her injury was not compensable, she contended, for the
first time, that Crossmark's notice to controvert was invalid as she had not
received all benefits owed before the notice was filed. The Appellate Division
vacated the ALJ's award, and remanded the case to the ALJ to allow Crossmark
to present evidence on the validity of its notice to controvert. At that point,
Crossmark filed its appeal which was found to be premature in Strickland v.
Crossmark, 268 Ga. App 568 (2009).

On remand, the ALJ determined that Crossmark's controvert was not valid as
they had underpaid TTD benefits by about $100 a week and had not paid her for
the first seven days of disability, though she was paid beyond the 21st
consecutive day of disability. Crossmark was not in compliance with the law and
could not utilize the provisions allowing a notice to controvert to be filed after
payments began. Claimant was awarded ongoing benefits, as well as assessed
fees and expenses. Crossmark appealed, but the award was affirmed by the
Appellate Division and Superior Court.

In affirming the Appellate Division award, the Court of Appeals noted that the
Appellate Division's jurisdiction is broader than appellate courts, in that it has
jurisdiction to reconsider the ALJ's findings. The Court cited Home Depot v.
McCreary, 306 Ga. App 805 (2010) as well as O.C.G.A. 34-9-103(a), which
gives the Appellate Division the authority to remand cases to the ALJ.

The Court of Appeals agreed with Crossmark that the Superior Court erred with
its statement that the "any evidence" rule applied. However, the Court found
the misstatement to be harmless error and affirmed the award as it was right for
any reason.

The case is a wake up call to remind Employers/Insurers of the importance of
strict compliance with the statutory provisions and the dire consequences that
may follow failure to comply.
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A11A0688 Subsequent Injury Trust Fund, State of Georgia v. City of
Atlanta
Decided: July 6, 2011

Issue: Does an employer's advance payment to an employee under OCGA 34-
9-222 constitute the payment of an income benefit for purposes of calculating the
78 week time limitation for filing a claim for reimbursement by the Subsequent
Injury Trust Fund under OCGA 34-9-362(a)?

Decision: The advance payment of future income benefits paid to preclude
extreme hardship, rather than to compensate for present lost wages, is not
subject to conversion to the equivalent of weekly income benefits paid within the
meaning of the 78 week limitation for putting the Subsequent Injury Trust Fund
on notice of a claim.

The claimant sustained a work injury on April 5, 2001. He initially received salary
in lieu of workers' compensation benefits, but began receiving TTD payments
on September 2, 2001. In May 2002, the Board issued an order finding that
an advance of $12,000 was in the claimant's best interest to prevent extreme
hardship. The advance was to be credited against future PPD benefits and was
paid on June 21, 2002. On October 15, 2002, after paying 59 weeks of TTD
benefits, the employer notified the Fund of a potential claim for reimbursement.

The Fund denied reimbursement on the grounds that the October 2002 notice of
claim was untimely. The employer requested a hearing to challenge the denial.
The ALJ and the Appellate Division ruled in favor of the Fund and found that the
claim was time barred. The Superior Court reversed and found that the claim
was timely. The Court of Appeals affirmed the Superior Court's decision.

The Court of Appeals found that the advance was not ordered to compensate the
claimant for present lost wages, rather it was ordered to prevent a hardship to
the claimant and would be credited against a future PPD rating. Therefore, the
advance did not count towards the 78 week time limit.

_________________________________________

City of Atlanta v. Holder, Court of Appeals Case No. A11A0659
Decided May 18, 2011

Issue: Did the superior court err by denying the employer's motion to set aside a
judgment that was based on a workers' compensation settlement approved by the State
Board of Workers' Compensation due to mistake? The Court of Appeals answered yes.

The claimant, a police officer with multiple accident date claims, settled his claims with
the employer for $72,000.00. Pursuant to Board Rule 15, a Stipulation and Agreement
was submitted to the State Board for approval. The stipulation referenced 15 separate
accident dates spanning 24 years and included a stipulation that "there has been
no other accident except that stated above." The Board approved the settlement on
January 23, 2007, and the employer paid the proceeds to the claimant and his lawyer
on January 30, 2007.

A second Stipulation and Agreement appeared. Pages two through seven of the
second stipulation were identical to the first, including the Board's file stamp on every
page. The first page also was identical, except instead of referencing the same 15
accident dates, someone had handwritten the single date of 1/16/93, a date that was
not among the 15 identified elsewhere in the document or in the first stipulation. This
second stipulation was approved by the Board on January 25, 2007. The claimant
sought payment of an additional $72,000.00 pursuant to the second stipulation.

The employer appealed the second stipulation approval to the superior court, asserting
that the award was procured by mistake or fraud. The superior court failed to issue an
order within 20 days of the appeal hearing, so the Board's approval order was affirmed
by operation of law. The superior court attempted to remedy its failure and issued an
order remanding the case to the Board to resolve the factual dispute of whether one
or both stipulations were to be enforceable. The Board took no action on the remand.
The employer sought discretionary review of the affirmation by operation of law in the
Court of Appeals, which granted the application but later dismissed the appeal after the
employer failed to file an appellate brief.

The claimant then filed a Demand for Judgment in the superior court seeking
enforcement of the approved second stipulation. The superior court denied the
demand for judgment in reliance on its earlier order of remand to the Board. The
claimant appealed the denial, and the Court of Appeals reversed on the ground that the
attempted remand was void based on the superior court's not having entered the order
within 20 days of the appeal hearing.

The superior court then entered an order granting the claimant's demand for judgment
and scheduled a hearing to determine possible penalties under O.C.G.A. § 34-9-221.
On the day of the hearing, the employer moved to set aside the judgment on the basis
that it was obtained as a result of fraud or mistake. Attached to its motion was an
affidavit of the State Board's former settlement director who stated that the approval of
the second stipulation was the result of an internal Board mistake. The claimant did

not respond to the motion, and no hearing was held on the motion. The superior court
later entered a final order denying the employer's motion to set the judgment aside and
granting the claimant's motion to enforce the judgment, specifying penalties, interest,
and attorney fees. The employer appealed the final order and the denial of its motion to
set aside.

The Court of Appeals held that O.C.G.A. § 9-11-60(d) permits a ruling on a motion to
set a judgment aside with or without a hearing. If there is no hearing, parties who wish
to raise evidentiary matters must attach affidavits to their pleadings. In the absence of
any evidence from the claimant, the only evidence as to whether there was a mistake
that justified setting aside the judgment arising from the approved second stipulation
was the affidavit accompanying the employer's motion. Additionally, the Court noted
that the first approved stipulation included the claimant's statement that there were
no accidents other than the ones identified in that stipulation. The Court reversed the
judgment and remanded the case to the superior court with instruction to grant the
employer's motion to set aside.

_________________________________________

Veolia Environmental Services v. Vick, Court of Appeals Case No. A11A0364
Decided May 2, 2011

Issue: Did the Superior Court err in holding that the employer bore the burden of
proving the claimant was not entitled to temporary partial disability benefits (TPD)
following termination of employment in a hearing where the claimant sought TPD up to
the termination and temporary total disability benefits (TTD) thereafter? The Court of
Appeals ruled that the holding was error.

Summary: The claimant sustained a compensable injury and received TTD from 5/8/
2007 until 6/28/2007, when he returned to light duty work. In March 2008, the employer
terminated the claimant's employment based on his taking morphine, prescribed by his
personal physician, without a letter from his doctor clearing him to work while on the
medication, a violation of company policy. The claimant requested a hearing, seeking
TPD for the time he was on light duty and TTD following his last day of work. The ALJ
awarded TPD from the date the claimant returned to work until his last day of work but
denied TTD. The ALJ's award provided that TPD should continue after the last day of
work because the employer had not proven a change in condition for the better. Both
parties appealed to the Appellate Division.

The Appellate Division vacated that portion of the ALJ's award that directed the
employer to pay continuing TPD. The claimant appealed to the Superior Court, which
remanded the case to the Appellate Division with instruction to place the burden of proof
on the employer to show the claimant was not entitled to TPD following his last day of
work. The Court of Appeals granted the employer's application for discretionary appeal.

The Court of Appeals reversed the superior court, finding that the Appellate Division

properly determined that the claimant was not entitled to continuing TPD. Because the
claimant specifically sought TTD for the period after his termination, the Court reasoned,
it was the claimant's burden to prove entitlement to any benefit. According to the Court,
had the claimant accepted the TPD determination without seeking a return to TTD, then
the TPD determination and entitlement would have continued after the termination.

_________________________________________

A11A0307 Bonus Stores, Inc. et al. v. Hensley
Decided April 5, 2011

Issue: Did the Appellate Division improperly apply a de novo standard of review
when it reversed the Administrative Law Judge's Award?

Decision: The claimant injured his back in a compensable accident. He was
paid temporary total then temporary partial disability benefits. When the cap for
TTD/TPD benefits expired, the claimant requested catastrophic designation.

The claimant presented records from his family physician, a questionnaire
completed by his family physician, as well as a vocational assessment in support
of catastrophic designation. The claimant and the vocational expert testified at
the hearing.

The employer presented medical reports from two orthopedists and a spine
specialist that the claimant had no restrictions as a result of his work injury.
One of the reports concluded that the claimant had reached MMI and had no
remaining impairment in connection with his injury. The claimant's vocational
expert admitted that if the judge were to believe the medical opinions presented
by the employer, there would be jobs available to the claimant.

The Administrative Law Judge found the back injury was catastrophic, relying
primarily on the family physician's report.
The Employer appealed to the
Appellate Division.
The Appellate Division found the medical evidence
presented by the Employer to be more convincing, reversing the ALJ and
denying catastrophic designation. The claimant appealed to the Superior Court.

The Superior Court reversed the Appellate Division finding legal error by its
application of a de novo standard of review. It found that the ALJ's decision
that the injuries were catastrophic was supported by a preponderance of the
competent and credible evidence. The Employer appealed.

The Court of Appeals examined O.C.G.A. 34-9-103(a) holding that the Appellate
Division must weigh the evidence established at trial and assess the credibility of
witnesses to determine if the award of the ALJ is supported by a preponderance
of evidence. If after assessing the record, the Appellate Division concludes that
the Award does not meet the evidentiary standards, the Appellate Division may
substitute its own alternative findings for those of the ALJ.

Although the Appellate Division's review is not strictly de novo, it is a trier of
fact authorized to assess witness credibility, weigh conflicting evidence and
draw factual conclusions different from those of the ALJ. The Appellate Division
performed the appropriate review when it weighed the evidence and substituted

its own findings.

The Superior Court performs a more limited review. The factual findings of the
Appellate Division, when supported by any evidence, are conclusive and binding
on the Superior Court. The Superior Court may not substitute itself as a fact
finding body.

Because the Appellate Division's finding that the injury was not catastrophic was
supported by some evidence, the Superior Court erred in weighing the evidence
and substituting its judgment for that of the Appellate Division. Therefore,
the Superior Court was reversed. The injury ultimately was found to be non-
catastrophic.

_________________________________________

The Home Depot et al. v. McCreary
306 Ga.App. 805, 703 S.E.2d 392 (2010)
Decided November 16, 2010.

Issues:

(1) Did the Appellate Division of the State Board of Workers' Compensation and the
superior court lack subject matter jurisdiction to consider whether a claimant sustained a
fictional new injury when the ALJ award made no finding regarding that issue, although
it had been raised at hearing, and the claimant did not file a cross-appeal when the
employer appealed on different grounds? No.

(2) Did the superior court err when it remanded the case to the State Board of Workers'
Compensation based on its conclusions that the Appellate Division had incorrectly found
that there was no evidence supporting an element of the claim and that the Appellate
Division failed to apply the appropriate legal burden of proof? No.

Summary:

In 2001, the claimant was struck on the forehead by a piece of plywood at work. Her
health insurance paid for medical treatment, and she made no workers' compensation
claim. In January 2002, she had a compensable neck injury. In June 2003, she stopped
working. In July 2003, she began receiving temporary total disability benefits (TTD) for
the neck injury.

The claimant requested a hearing seeking medical and income benefits for the head
injury, contending she suffered a fictional new accident as of the date she stopped
working in June 2003. She included a claim for the 2001 accident. At hearing, both
parties agreed that the 2001 claim was barred by the statute of limitations.

The ALJ found that the claimant's 2001 injury was compensable and found the employer
liable for medical bills incurred since 2001. The ALJ made no findings regarding
whether she suffered a fictional new injury in 2003 or whether she was entitled to income
benefits in 2003.

The employer appealed, and the Appellate Division reversed the ALJ because (1) the
statute of limitations had run on the 2001 claim, and (2) it found there was no evidence
supporting the claimant's contention that continued working aggravated the head injury,
a required element to establish a fictional new accident. The claimant then appealed to
the superior court, which set aside the Appellate Division's award. The superior court
held that there was, in fact, conflicting evidence in the record regarding whether work
aggravated the claimant's head injury, and directed the Appellate Division to weight that
evidence. The superior court also instructed the Appellate Division to clarify whether it
considered the doctrine of aggravation of a preexisting condition.

The Court of Appeals rejected the employer's argument that the Appellate Division
and Superior Court lacked subject matter jurisdiction to consider the compensability of
the 2003 claim. Because the Appellate Division had jurisdiction to consider all issues
originally brought to the hearing, regardless of whether the ALJ did not rule on some
of those issues, the Appellate Division could issue an award as to those issues in the
absence of a specific appeal on them once the case reached it.

The Court of Appeals also rejected the employer's argument that the superior court's
remand was improper. While the failure to discuss a proposition of law does not prove
failure to consider it, the Court of Appeals held that the Appellate Division applied an
incorrect proposition of law when it stated that the claimant had the burden of proving
that her work injury was the proximate cause of her disability. Instead, the Appellate
Division should have considered whether continued work aggravated a pre-existing
condition, resulting in disability.

_________________________________________

Summary of 2010 Amendments to the rules of the State Board of Workers' Compensation (PDF)
_________________________________________

A10A1098. Hughston Orthopedic Hospital et al. v. Wilson
Decided October 19, 2010

Issue:

Did the Superior Court err in failing to apply the any evidence standard of review to
factual questions concerning causation?

Summary:

The claimant worked as a clinical technician for Hughston Orthopedic Hospital on a floor
of the hospital that was undergoing renovations, including the addition of new wallpaper.
Twice during May of 2006, the claimant felt sick due to fumes from wallpaper glue and
primer but continued working. On May 25, 2006, the claimant fainted and was taken
to the emergency room. When the claimant regained consciousness, she displayed
symptoms of a brain injury. Although the claimant purportedly could not talk or walk, all
tests revealed normal brain functioning.

The claimant continued to exhibit signs suggestive of brain injury. Numerous neurologic
exams showed normal brain functioning. One neurologist opined that the root of the
claimant’s problems stemmed from a psychological origin rather than a physiological
origin.

At the request of her attorney, the claimant consulted with neurologist Dr. Larry Empting,
who found that the claimant had a chemical sensitivity to the wallpaper materials and her
exposure to such chemicals created a neurological problem.

Relying on Dr. Empting’s diagnosis, and contending that her exposure to the chemicals
resulted in permanent neurological problems, the claimant filed a workers’ compensation
claim against the employer/insurer.

The ALJ rejected the claimant’s claim after observing the claimant’s demeanor and
conduct while testifying. The ALJ described the claimant’s testimony as “stuttered in a
bizarre, sporadic pattern which appeared to be feigned.” The State Board adopted the
ALJ’s findings and conclusions.

The claimant appealed to the Superior Court for Muscogee County. The Superior Court
remanded the decision to the State Board for retrial before a different ALJ. The court
found that the State Board improperly substituted its lay opinion for that of Dr. Empting.

The employer/insurer was granted discretionary appeal by the Court of Appeals.
The Court of Appeals found the Superior Court erred in reversing the State Board’s
decision. The Court of Appeals found the Superior Court failed to apply the mandatory
any evidence standard of review to factual questions and reversed the Superior Court,
reinstating the State Board’s decision. “Factual questions concerning causation are
properly left to the State Board to determine rather than to the Superior Court or the
appellate courts.” Because there was some evidence to support the Board’s findings, the
Superior Court erred in reversing and remanding.
___________________________________________

Lowndes County Board of Commissioners v. Connell, Ct. App., Case Nos.
A10A1213, A10A1214
Decided 8 September 2010.

The claimant, an investigator with the employer’s sheriff’s department, slipped and fell
on 17 March 2005 while executing a warrant, injuring his right knee. He was diagnosed
with bursitis and was given a knee brace. The claimant returned to work the following
day and continued to meet the physical demands of his job, which required significant
training every other week and strenuous physical standards tests approximately every
three months. He did not return to the doctor.

On 31 August 2006, the claimant struck his right knee on a glass coffee table while
executing a warrant. He did not seek medical treatment or miss work and continued to
meet all physical requirements until May 2007. That May, while riding a four-wheeler
at home, he used his right leg to stabilize the four-wheeler when it began to tip over
and felt a sharp pain and pop in his right knee. He was diagnosed with an ACL tear
and cartilage damage, for which he underwent surgery and missed about seven weeks
of work. The claimant requested a workers’ compensation hearing seeking medical
expenses and TTD for his lost time.

At the hearing, the claimant testified that he never felt completely healed after the
August 2006 accident and that his knee felt loose and unstable. The claimant’s surgeon
reported that the four-wheeler accident “revealed a pre-existing ACL injury” that was
chronic in nature. Other evidence, including the fact that the ACL tear had not been
diagnosed in earlier exams, the claimant’s previous continuing ability to perform the
physically demanding duties of his job, and the claimant’s testimony that he felt his
knee pop and felt sudden excruciating pain in the four-wheeler accident, supported a
conclusion that the ACL tear was new.

The ALJ found the torn ACL was causally connected to the prior work-related accident
in August 2006 and awarded medical benefits. The ALJ denied the claim for torn
cartilage and TTD. Both parties appealed. The Appellate Division found that neither
the torn ACL nor cartilage damage was related to the August 2006 injury. The superior
court reversed, reinstating the ALJ’s award of medical benefits for the ACL tear.
The Court of Appeals examined alternative theories of recovery presented by the
claimant. The claimant argued that the ACL tear pre-existed the four-wheeler accident,
but the Court found there was evidence on which the Board could base its finding that
the ACL tear was new. The claimant next argued that if his ACL was torn in the four-
wheeler accident, it was because his work duties had weakened his knee; although the
Court of Appeals acknowledged that a gradual worsening of an employee’s condition
at least partly attributable to his work can authorize the finding of a new accident at the
point the condition becomes disabling, the Court held there was evidence upon which
the Board could find that the ACL tear was a separate injury caused solely by the four-
wheeler accident. Finally, the claimant argued that his torn cartilage was compensable
as a superadded injury, because the work-related ACL damage caused the cartilage
tear. Having found the Board’s denial of the ACL tear was authorized, even if the torn cartilage was caused by the ACL tear, it did not meet the requirements of a superadded
injury.
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A10A0008; A10A0009. Selective HR Solutions, Inc., et al
v. Mulligan Decided July 12, 2010

1. Does failure to comply with Rule 205 obligate an employer/insurer to pay for
medical treatment unrelated to claimant’s work injury?

Summary:
The claimant injured her back at work in September, 2005, received
treatment under workers’ compensation, and returned to work in July, 2006. In
May, 2007, she re-injured her back after falling at home. Bills for the treatment
were submitted through her group health insurance, and the treatment records
reflected that the claimant’s symptoms from her 2005 injury had resolved until
recurring “for whatever reason” in May.

The claimant returned to her ATP for the September, 2005, work injury
who, on October 26, 2007, sent Board Form WC-205 to Selective, requesting
authorization for lumbar surgery. Selective did not respond to the WC-205
within 5 days and did not controvert the request within 30 days. The surgery was
performed in December 2007.

The claimant sought additional temporary total disability and medical
benefits for her September, 2005, accident. The Board denied claimant’s
requests finding that the surgery and disability were not due to her work injury.
The Superior Court agreed that no income benefits were due because the
disability was not due to the work injury but ordered Selective to pay for the 2007
surgery based on the employer/insurer’s failure to respond to the WC-205 within
5 days. Both parties requested and were granted discretionary review.

The Court of Appeals disagreed with the lower court’s interpretation of
Rule 205 which required Selective to pay for treatment for a condition unrelated
to the work injury. The Court explained that Board rules may not “enlarge,
reduce, or otherwise affect the substantive rights of the parties. The rule-making
powers of the Board are confined and limited to procedural and administrative
matters.” (citing Holt Serv. Co. v. Modlin, 163 Ga. App. 283,284-285) Ruling that
Rule 205 is invalid as substantive rule making, the Court overturned the lower
court’s finding and agreed that Selective was not responsible for treatment
unrelated to the claimant’s work injury.

However, both the Superior Court and the Court of Appeals failed to note
that Rule 205 does not require payment of unrelated medical treatment based on
failure to respond timely to a WC-205. Rule 205 says only that medical treatment
for which a request for pre-authorization is made via WC-205 but which is not
denied timely shall be paid “in accordance with this Chapter”. Clearly, the
Board does not have authority to expand the Act and Rule 205 took that into
account by noting that only treatment within the act must be paid if not timely
denied in response to a WC-205.

With regard to the claimant’s appeal, the Court ruled that the record included ample evidence to uphold the finding that the claimant had not
undergone a change in condition from her work injury but had sustained a new
injury when she fell at home and affirmed this portion of the order based on the
any evidence rule.
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S&B Engineers & Constructors Ltd. v. Bolden Bolden v. S&B Engineers & Constructors, Ltd. Georgia Court of Appeals, decided June 22, 2010

Issue: Can the Board order reinstatement of TTD from the date benefits were stopped based on a regular duty work release to the date of hearing where no WC-2 was served? It can. However, where the claimant amended her request at the hearing to seek only TTD until a date when she returned to work for a different employer, it was improper to order payment of benefits past that return to work date.

Following a compensable injury in June 2006, the employer/insurer commenced TTD in November 2006. On April 9, 2007, the claimant’s treating physician reported that she had no work restrictions related to the compensable work injury. On April 24, 2007, the employer/ insurer terminated TTD without filing or serving a WC-2 or otherwise notifying the claimant of the reason for the termination. The claimant went to work for a different employer on May 9, 2008. The claimant requested a hearing seeking TTD from the date of termination and continuing. At the July 2008 hearing, she amended her request to seek TTD only until her May 2008 return to work.

The ALJ found the claimant had no restrictions from her work accident as of April 9, 2007. The ALJ further found the employer/insurer violated O.C.G.A. 34-9-221 by failing to serve a WC- 2 and failing to give the claimant 10 days notice before suspending TTD. payment of an additional 10 days of benefits plus late payment penalty and assessed attorney fees in apparent reliance on Reliance Electric Company v. Brightwell, 284 Ga.App. 235 (2007). In Reliance, the employer suspended TTD only four days days after a WC-2 was filed. The Board ordered reinstatement of TTD through the date of earing, but the Appellate Division reversed, holding the claimant was entitled to only four days of benefits to complete the ten-day notice.

The Appellate Division amended the ALJ award and directed the employer/insurer to pay TTD from the date of termination until the date of hearing, citing the 10-day notice requirement. It pointed out that the employer in Reliance had filed a WC-2 but suspended before ten days, whereas in the present case, the employer/insurer never filed a WC-2 at all. The superior court affirmed the Appellate Division.

Reciting but declining to address the fact that the claimant had returned to work for a different employer, the Court of Appeals held that no evidence supported the Appellate Division’s award, because the claimant amended her request at the hearing to seek benefits only until May 9, 2008.

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Big Lots v. Kiker,  2010WL 2044522(Ga. App.) decided May 25, 2010 

Issue:  Is the claimant entitled to ongoing medical care if the work related aggravation of a pre-existing condition has ceased to be the cause of disability. 

The Court of Appeals decided that pursuant to O.C.G.A. Section 34-9-1(4) that when the aggravation of the pre-existing condition ceases to be the cause of disability that the claimant has undergone a change of condition for the better and is not entitled to further medical benefits.   

Claimant had a pre-existing back condition that was aggravated by a 2002 work injury. Claimant’s treating physician stated that the 2002 work related aggravation resolved, and that the underlying condition had worsened apart from the aggravation.  After a hearing, the administrative law judge and appellate division found that pursuant to O.C.G.A. Section 34-9-1(4) that because medical evidence showed the July 2002 injury which aggravated Claimant’s pre-existing condition had ceased to be the cause of disability that Claimant had undergone a change in condition for the better and was no longer entitled to medical benefits.   

The Superior Court reversed and held that because there was a change of physicians by agreement in December 2005, any evidence before December 2005 could not be considered to prove a change in condition, as the change must be determined from the last date physical condition was determined by award or otherwise.  The Superior Court found that all of the evidence relied on by Employer/Insurer was before the change of physicians order.  

The Court of Appeals reversed the Superior Court and held that a change of physician’s order does not establish Claimant’s physical condition, and also held that the Board had considered medical evidence from a physician who treated Claimant through June 2008.  Since there was evidence to support the Board’s findings, the Court of Appeals held that Claimant was not entitled to further medical benefits. 
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The Kroger Company et al. v. Wilson, Ga. Ct. of App. (A09A1226), decided July 8, 2009 

Issue: Does the two year change in condition statute of limitations at § 34-9-1046 apply to requests for catastrophic designation? 

The Court of Appeals held it does. 

Claimant injured his back in 1994 and received workers’ compensation benefits until September 2001. In August 2003 claimant filed a WC-14 form requesting a hearing and seeking temporary total and/or temporary partial disability benefits. He included nothing concerning a catastrophic injury designation on the form. Claimant withdrew his request and no action was taken on the claim. In April 2006 claimant filed an Employee’s Request for Catastrophic Designation form, requesting that his condition be designated as catastrophic. The ALJ issued an order finding claimant’s request time-barred by the two-year statute of limitations in O.C.G.A. § 34-9-104 (b). The Appellate Division reversed, and the Superior Court affirmed the Appellate Division’s decision. 

The Court of Appeals reversed. The Court held that a request for catastrophic designation constitutes a request for a change in status or condition, and under O.C.G.A § 34-9-104 (b), a request for a change in condition must be filed within two years from the date of the last income payment. Claimant’s last income payment was in 2001 and his request for catastrophic designation was filed in 2006, well beyond the two-year statute of limitations period. Claimant argued that his August 2003 form was sufficient to toll the statute of limitations, but the Court rejected this argument because his WC-14 form had not requested catastrophic injury designation, it had only specified temporary disability benefits.  

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Strickland v. Crossmark et al., Ga. Ct. of App. (A09A0491), decided June 26, 2009 

Issue: When the Appellate Division vacates an ALJ’s decision, and remands the case back to the ALJ for further proceedings, can a party appeal the Appellate Division’s decision to the Superior Court? 

The Court of Appeals, citing Cartwright v. Midtown Hosp., 243 Ga. App. 828, 829 (534 S.E.2d 504) (2000), held that “only a final award, order, judgment or decision of the [Appellate Division] is subject to appeal in the Superior Court,” and that interlocutory appeals are unauthorized under the Workers’ Compensation Act. 

Claimant injured her lower back at work and for approximately three months, her employer paid her voluntary workers’ compensation benefits. She filed a workers’ compensation claim, and her employer controverted the claim. She contended the accident happened between 11 and 11:30 a.m., however, her time sheet revealed that she had not signed into work until noon that day. The ALJ denied her compensation in any amount. Claimant appealed the ALJ’s decision, claiming that her employer’s notice to controvert was invalid because, as an employer which had voluntarily commenced paying her benefits, it failed to pay her all compensation due at the time of its notice to controvert in violation of O.C.G.A § 34-9-221 (h) and Board Rule 221. The Appellate Division vacated the decision of the ALJ and remanded for additional proceedings as to the validity of the notice to controvert. The employer appealed to the Superior Court, and the Superior Court reversed and remanded the Appellate Division’s holding. 

The Court of Appeals reversed the Superior Court’s decision, holding that the Superior Court did not have the jurisdiction to hear the appeal because it was interlocutory, and not a final judgment. 

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Home Depot et al. v. Pettigrew, Ga. Ct. of App. (A09A0119), decided June 2, 2009 

Issue: When a claimant files a request for catastrophic designation under O.C.G.A. § 34-9-200.1 (g) (6), can the ALJ also determine the compensability of a superadded injury resulting from the accident at issue simply because claimant presents evidence of the superadded injury to support her request? 

The Superior Court and the Court of Appeals held that because there was no notice and no opportunity to be heard on the issue of compensability, and no implied consent to trial of the compensability issue, then the ALJ erred as a matter of law in making factual findings on that issue. 

Claimant twisted her ankle while working at Home Depot. She began experiencing back pain attributed to the changes in her gait caused by the ankle injury. Claimant filed a request that her injury be designated as catastrophic. The ALJ issued an order finding her ankle injury catastrophic, but that her back problems were not due to the ankle accident. Claimant appealed the determination about her back problems, and argued that the ALJ’s factual finding could not stand because she had not received sufficient notice that compensability of the back condition would be an issue at the hearing. The Appellate Division found claimant herself raised the issue in her form requesting catastrophic designation and that she was given the opportunity to present evidence on the issue. 

Claimant appealed to the Superior Court which ruled that the ALJ’s finding of fact about the back injury should be stricken from the original award because claimant did not squarely recognize the issue of compensability as an issue in the trial. The Court of Appeals agreed with the Superior Court, that the ALJ erred as a matter of law; however they remanded the case for a further evidentiary hearing and vacated the judgment because the Superior Court did not have the power to strike the ALJ’s finding. 

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City of Atlanta et al. v. Roach, Ga. Ct. of App. (A09A0456), decided April 8, 2009 

Issue: Does a claimant sustain a superadded injury when he injures himself by treating his work-related injuries with a form of treatment that is neither prescribed nor authorized?  

The Court of Appeals said he does not. 

Claimant injured his hip in a work-related accident in 2004. In 2006, claimant experienced pain in his injured hip, and placed a heating pad on it. Claimant fell asleep and the heating pad caused third degree burns. The ALJ found that claimant had suffered a superadded injury and determined that the burn injury was “related to” claimants work-related injury. 

The Appellate Division reversed, holding that under J.M. Huber Corp. v. Holliday, 228 Ga. App. 4 (491 S.E.2d 74) (1997), claimant’s burn injury did not arise as a “natural consequence” of the claimant’s work-related hip fracture. The Appellate Division also found that the burn injury was not the result of reasonably required medical treatment prescribed or authorized for the treatment of claimant’s work-related injury, within the meaning of Standridge v. Candlewick Yarns, 202 Ga. App. 553, 555 (415 S.E.2d 10) (1992). The Superior Court reversed, and reinstated the ALJ’s award, holding that the injury was compensable because the heating pad was used as a “consequence” of the original injury.  

The Court of Appeals reversed, and held that because the heating pad was not prescribed by a physician, and because it was within the Appellate Division’s power to determine that prolonged use of the device while sleeping was not reasonably required medical treatment, the conclusion that claimant did not sustain a superadded injury was proper. 

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Tara Foods et al. v. Johnson, Ga. Ct. of App. (A08A1628), decided March 26, 2009 

Issue: When a claimant specifies “notice of claim,” but does not request a hearing on her WC-14 form, does the WC-14 form constitute an application for a change of condition under O.C.G.A. § 34-9-104 (b)? 

The Court of Appeals said claimant’s WC-14 form only gave notice of a claim and that it would have constituted an application, and she could have obtained a decision on the claim, only by requesting a hearing. 

Claimant suffered a work-related neck injury. In 2001 she received her last income benefit arising from the accident. In 2002 she filed a WC-14 form specifying “notice of claim” and “income benefits” for catastrophic designation. She did not request a hearing, and as a result, no action was taken with regard to the form. In 2005 claimant filed another WC-14 for payment of medical bills. She requested a hearing, but did not make any reference to a request for catastrophic designation. Before the hearing was held however, claimant and her employer resolved the medical benefits issue. In 2006, claimant filed a third WC-14, this time requesting a hearing seeking catastrophic designation.  

The ALJ determined that because more than two years had passed since claimant’s last payment of income benefits and at the filing of the third WC-14, the two-year statute of limitations set out in O.C.G.A § 34-9-104 (b) had expired. Claimant argued that her first WC-14 form in 2002 constituted an application for a change of condition (for catastrophic designation). The Appellate Division affirmed the ALJ’s decision because claimant’s 2002 WC-14 had not requested a hearing. The Superior Court disagreed, and reversed the Appellate Division’s holding. The Court of Appeals reversed the Superior Court’s decision.  

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Laurens County Board of Education et al. v. Dewberry, Ga. Ct. of App. (A08A1503), decided February 19, 2009 

Issue: Under O.C.G.A § 34-9-104, does a claimant experience a change in condition when he is forced to cease work because of the gradual worsening of a job-related injury, where he never received income benefits for the previous injury?  

The Court of Appeals said he does not. 

In 2000, claimant injured his knee while performing custodial work. Claimant underwent surgery and returned to work. Claimant’s employers’ insurance, Georgia School Board Association Self-Insurance Fund (“GSBA”) paid all of his medical bills, and he did not request or receive any income benefits. In 2004, Georgia Education Workers’ Compensation Trust Fund (“GEWCT”) assumed insurance responsibility for claimant’s employer. Claimant’s condition continued to worsen and in 2005 he was scheduled to receive another surgery. GSBA canceled the surgery and stopped paying for the medical treatment. As a result, claimant was forced to quit work. 

Claimant filed a claim and the ALJ found that claimant suffered a fictional new accident and that GEWCT was responsible for his claims arising out of the new accident. The Appellate Division and Superior Court both affirmed the award. GEWCT’s argument that claimant experienced a change in condition and that GSBA remained responsible for his medical bills was rejected. Citing Central State Hospital v. James, 147 Ga. App. 308, 309 (1) (a) (248 S.E.2d) (1978), the Court of Appeals held that when an employee is injured on the job but continues to perform the duties of his employment without receiving any worker’s compensation benefits, but subsequently is forced to quit work because of the steady decline of his condition, the result is a fictional new accident. Therefore GEWCT, the insurance carrier on the date of claimant’s fictional new accident, is liable for the claim. 

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Creeden et al. v. Fuentes, Ga. Ct. of App. (A08A2331), decided February 13, 2009 

Issue: Does an owner attain “contractor” status under O.C.G.A. § 34-9-8(a), entitling it to statutory employer status and  tort immunity under O.C.G.A. § 34-9-11, when it retains ownership of the property but also acts as a contractor there, performing work not only for its own benefit but expressly for the benefit of another entity? 

The Court of Appeals said it does. Therefore, the exclusive remedy provision of the Workers’ Compensation Act, O.C.G.A. § 34-9-11, bars the claimant’s negligence action. 

Highland Custom Homes, owned by Creeden, builds residential homes and hired Rich Drywall, Inc. to perform drywall installation in one of its houses contracted to a buyer. Rich Drywall, Inc., hired a subcontractor to perform the sanding, and claimant, Fuentes, was hired as part of the sanding crew. While at the construction site, claimant fell through an elevator shaft opening and was seriously injured. Claimant sued Highland for negligence. 

The trial court denied Highland’s motions for summary judgment noting that although Highland had contracted with a buyer, it retained sole ownership of the property and the work being done was for Highland’s benefit, therefore under O.C.G.A. § 34-9-8 it was not immune to actions in tort. The tort immunity referred to in O.C.G.A. § 34-9-8 applies to contractors and not owners. However, under O.C.G.A. § 34-9-8(a), if an owner also serves as a contractor, it is entitled to statutory employer status and protected from tort actions. The Court of Appeals reversed the trial court’s judgment finding that Highland was both the property owner and the general contractor responsible for building the home. Because it functioned in a dual role as both owner and contractor, it was entitled to statutory employer status under O.C.G.A. § 34-9-8(a) and immune from liability. 

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Harris v. Peach County Board of Commissioners, Ga. Ct. of App. (A08A1846), decided February 11, 2009 

Issue: When a claimant’s obesity contributes to her workplace injury, is she barred from recovery? 

The Court of Appeals held, citing Lumbermen’s Mut. Cas. Co. v. Griggs, 190 Ga. 277, 287 (9 S.E.2d 84 ) (1940), that “the employer takes his employee as it finds him and assumes the risk of a diseased condition aggravated by injury.” Therefore, claimant’s obesity did not preclude the finding that her injury arose out of her employment and was compensable. 

Claimant worked as a custodian and injured her knee while bending over to pick up an item on the floor of her workplace. The doctor found that claimant’s injury was caused by “extreme weight being put on the knee” when she bent over. Claimant’s supervisor testified that it was claimant’s duty as a custodian to remove foreign objects from the floor. Thus the ALJ found that because she was on duty at the time of the accident, her injury arose out of and in the course of her employment. 

The Appellate Division affirmed the ALJ’s finding, but the Superior Court reversed concluding that “because [claimant] was equally exposed to the risk [of being injured by her obesity] both on an off the job, she cannot say that her work caused her injuries.”  The Court of Appeals reversed the Superior Court’s judgment, holding that there was evidence that bending over to remove an object from the floor was incidental to the character of claimant’s employment as a custodian, and that compensation is authorized under the Workers’ Compensation Act “where an existing ailment is accelerated by the employment.” 

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Williams v. Conagra Poultry of Athens, Inc. et al., Ga. Ct. of App. (A08A1854), decided January 28, 2009 

Issue: Is a claimant’s request for additional income benefits upon catastrophic injury designation subject to the two-year statute of limitations included in O.C.G.A. § 34-9-104 (b)? 

The Court of Appeals held that the claimant’s request for additional benefits is a request upon change in condition seeking increased income benefits and, therefore, subject to the limitation period in O.C.G.A § 34-9-104(b) 

Claimant injured her neck at work and received disability benefits for the maximum allowable period of time, ending in April 2001. Her request for catastrophic injury designation was approved on October 2003.  Her employer, Conagra, filed a request for a hearing before the ALJ. The ALJ ruled that claimant was not entitled to additional income benefits upon catastrophic injury designation because the two-year statute of limitations included in O.C.G.A. § 34-9-104 (b) had expired. The Appellate Division and the Superior Court both affirmed the ALJ’s decision. Claimant appealed, and the Court of Appeals affirmed the judgment, stating that the trial court’s denial of claimant’s request for additional income benefits was not error. 

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Dekalb Board of Education v. Singleton, Ga. Ct. of App. (A08A1181), decided October 17, 2008 

Issue: Can a claimant receive benefits for depression, anxiety, and adjustment disorder, all which developed after a work-related inhalation injury aggravated her preexisting asthma? 

Citing Southwire Co. v. George, 266 Ga. 739, 741 (470 S.E.2d 865) (1996), and Abernathy v. City of Albany, 269 Ga. 88, 89 (495 S.E.2d 13) (1998), the Court of Appeals held that in order for a psychological injury to be compensable, the injury must arise out of an accident in which a compensable physical injury was sustained; and at a minimum, the physical injury must contribute to the continuation of the psychological trauma. Because evidence was presented that claimant’s physic condition originated with her work-related accident, and her physical injury contributed to the continuation of her condition, claimant’s psychological problems are compensable. 

Claimant experienced an asthma attack after she was exposed to fire extinguisher residue and cleaning products on her school bus. Following the injury she was diagnosed with depression, anxiety, and adjustment disorder. Claimant testified that she had a real fear of dying from further asthma attacks, and that she was concerned for the safety of the children that she would be transporting if she continued to drive the school bus. The ALJ awarded income benefits, medical payments, and ongoing medical care for claimant’s physical and psychological injuries. The Appellate Division affirmed. 

Claimant’s employer argued that claimant suffered no major psychic disability, her original physical injury quickly resolved, and there were no subsequent consistent complaints of any major psychic trauma. The Court of Appeals rejected these arguments, and affirmed the award, because there was some evidence presented by one of the physicians that claimant’s psychological problems arose out of her accident and continued to be a problem because of her asthma attack. 

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Clarke v. Country Home Bakers et al., Ga. Ct. of App. (A08A2032), decided October 17, 2008 

Issue: Can a claimant receive workers’ compensation benefits when he is a prison inmate voluntarily working for a private employer as part of the Department of Correction’s work release program? 

The Court of Appeals said no. 

Claimant argued that because his participation in the work release program was voluntary, the inmate exclusion in O.C.G.A. § 34-9-1 (2) did not apply. The Court of Appeals rejected this argument, holding that although his work release job was voluntary, it was still “part of his punishment” and did not make him an “employee” under O.C.G.A. § 34-9-1. 

While serving a six-year prison sentence, claimant worked as a trustee at a bakery through the Department of Correction’s work release program. Claimant fell on the job, and sustained serious injuries. He was initially paid workers’ compensation benefits, but they were suspended upon notice from the Department of Corrections that he was incarcerated and not eligible for compensation. After he was paroled, claimant filed a claim seeking temporary total disability benefits. The ALJ denied the claim and the Appellate Division and Superior Court both affirmed. 

The Court of Appeals affirmed the order, citing O.C.G.A. § 34-9-1 (2) and stating that although claimant was able to make a few, very limited choices about how to spend his time while being punished, (like volunteering for the work release program), it did not mean that his time spent working at the bakery was separate from his punishment. Therefore he cannot receive benefits because he was not an “employee” under the Workers’ Compensation Act. 

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Keystone Automotive et al. v. Hall, Ga. Ct. of App. (A08A0086), decided July 10, 2008 

Issue: When an employee died without explanation in a place that he was expected to be while on the job, is his widow entitled to the presumption that his death arose out of his employment, even when the immediate cause of his death was a naturally occurring cardio-pulmonary arrest? 

The Court of Appeals said she is. Citing Buschel v. Kysor/Warren, 213 Ga. App. 91, 94 (4) (444 S.E.2d 105) (1884), the Court said the presumption that the death is compensable, “arises when the employee’s death is ‘unexplained.’ This does not mean, however, that the immediate cause of death must be unexplained; it means that the precipitating cause, rather than the immediate cause of death must be unexplained.” 

While at work, decedent collapsed on the ground by his truck and was found by fellow employees. Decedent never regained consciousness, and died after three weeks of hospitalization. Claimant filed for workers’ compensation benefits and the ALJ concluded that under Zamora v. Coffee General Hospital, 162 Ga. App. 82, 84-85 (290 S.E.2d 192) (1982), claimant was entitled to the presumption that the death arose out of decedent’s employment because he was in a place where he would reasonably be expected to be while on the job, and his death was unexplained. 

The Appellate Division reversed, relying on a physician’s review, which opined that decedent’s death was “the result of a naturally occurring event unrelated to his usual work of employment.” The Superior Court reversed, stating the Appellate Division erred by confusing the “immediate” cause of death with the “precipitating” cause of death. The Court of Appeals affirmed, holding that the precipitating cause of his death was not explained, and that medical opinions merely go to the immediate cause of his death.  

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McLendon v. Advertising That Works et al., Ga. Ct. of App. (A08A0768), decided July 10, 2008 

Issues: 1) When an employee asserts that a second claim is an amendment to a first claim, does the date of the second claim “relate back” to the filing date of the first claim, therefore avoiding the one-year statute of limitations?

2) Does the entire Civil Practice Act apply to all workers’ compensation cases? 

The Court of Appeals answered both questions in the negative. 

Claimant filed a WC-14 in March 2005, identifying an accident date of July 2004. In July 2005, claimant filed another WC-14, purporting to amend his first date of accident to June 2004. The July 2004 injury date was dismissed with prejudice. Claimant’s employer moved to dismiss the June 2004 claim on the grounds that it was barred by the one-year statute of limitations. Claimant argued that the July 2005 WC-14 was an amendment to the March 2005 form and “related back” to the original filing date. The ALJ disagreed and held that the June 2004 claim was barred by the statute of limitations. The ALJ’s decision was based on evidence that claimant signed two attorney fee agreements in March 2005 that identified both the June 2004 and July 2004 accident dates. Furthermore, claimant asserted TTD and PPD from the July 2004 injury, and only PPD from the June 2004 injury. Thus, the ALJ concluded that the first assertion of the June 2004 claim was in July of 2005, which was more than a year later. The Appellate Division and Superior Court both affirmed.  

On appeal, claimant argued that O.C.G.A § 9-11-15 (c), which provides that certain amended pleadings in civil matters relate back to the date of original filing, should apply. The Court of Appeals rejected this argument and affirmed because the Civil Practice Act does not have mandatory application to worker’s compensation cases, except where statute specifically calls for such application. 

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Rheem Manufacturing Company v. Butts, Ga. Ct. of App. (A08A0428), decided July 8, 2008 

Issue: Can an employer be sued in tort for the consequences of its physician’s malpractice when that malpractice aggravates an employee’s preexisting, unrelated condition? 

The Court of Appeals held that workers’ compensation is the employee’s exclusive remedy against the employer. 

Claimant went to his employer’s on-site medical clinic complaining of knee pain. After several visits to different doctors at the on-site facility, he was referred to an outside orthopedist. An MRI taken by the orthopedist revealed a cancerous tumor in claimant’s leg. He sued his employer and two of the on-site facility’s doctors, alleging negligent delay of diagnosis and treatment of his cancer. Claimant died and his widow was substituted as plaintiff and filed a separate wrongful death action. The employer moved for summary judgment, and the trial court denied the motion. 

The Court of Appeals reversed and remanded with instruction to enter summary judgment in favor of the employer. The Court held that the alleged injury was essentially the aggravation of pre-existing, non-work-related cancer caused by the doctors’ negligence. The Court found that the aggravation arose in and out of the course of claimant’s employment, and that if the doctors were employed by Rheem, and co-employees of claimant, the tort suit would be barred by the exclusive remedy provision of the Workers’ Compensation Act. However, if the doctors were found to not be co-employees, Rheem would still not be liable in tort because of O.C.G.A. § 34-9-203 (b).  

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United Grocery Outlet et al. v. Bennett, Ga. Ct. of App. (A08A0677), decided June 27, 2008 

Issue: Is the two-year statute of limitations in O.C.G.A. § 34-9-104 (b) tolled by an employer’s failure to serve an employee various forms required by the State Board of Workers’ Compensation? 

The Court of Appeals said it is not. 

Claimant received temporary total disability benefits after injuring her arm at work. More than two years after the last payment was made, claimant requested a reinstatement of benefits based on a change in condition. The employer denied the request, stating that the claim was barred by the two-year limitation in O.C.G.A § 34-9-104 (b). Claimant argued that the limitation period was tolled by the employer’s failure to serve certain forms required by the State Board of Workers’ Compensation’s rules. The ALJ denied benefits, and the Appellate Division affirmed. The Superior Court reversed. 

The Court of Appeals, looking to the plain language of O.C.G.A § 34-9-104 (b) reversed the Superior Court’s finding. The Court held, “nothing in the statutory language tolls the period pending compliance with rules regarding the filing and service of board forms, although an employer who violates these rules may be … subject to civil penalties.”  

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Freeman v. Brandau, Ga. Ct. of App. (A08A0339, A08A0340), decided June 26, 2008 

Issue: Is an elected sheriff considered a county employee, therefore barring another county employee from bringing an action against him because of the exclusive remedy provision of the Workers’ Compensation Act? 

The Court of Appeals said that the sheriff is an elected constitutional county officer and not a county employee. Thus, the suit is not barred. 

Deceased court reporter’s estate sued the Fulton County sheriff and other sheriff’s department employees, claiming that the sheriff’s and employees’ negligence allowed an inmate to escape custody, obtain a gun, and shoot decedent. The sheriff moved to dismiss the complaint asserting that the suit was barred by the exclusive remedy provision of the Workers’ Compensation Act because he and the court reporter were co-employees. The trial court, treating the motion as one for partial summary judgment, denied it. The trial court found that the sheriff owed a unique duty to protect judges and their staffs, and that he could be held liable if he breached that duty. 

The Court of Appeals affirmed the trial court, but on different grounds. The Court noted that if the reporter and sheriff were both county employees, the suit would be barred by the exclusive remedy provision. The Court held, however, that the sheriff was not a county employee, but was an elected constitutional county officer. The Workers’ Compensation Act provides that elected county officers may be considered employees if the county’s governing authority provide therefore by resolution, but there was no evidence that Fulton County had done so. Therefore the exclusive remedy provision did not bar the action. 

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Parham v. Swift Transportation Company, Inc., Ga. Ct. of App. (A08A0472), decided June 18, 2008 

Issue: When a claimant presents evidence about his level of exertion at work, and that the exertion caused his hospitalization, is that evidence sufficient to find that claimant had a compensable injury? 

The Court of Appeals held that claimant’s testimony regarding his exertion provided the “any evidence” necessary to award benefits. 

Claimant became sick while unloading his truck in humid weather exceeding 90 degrees He received hospital treatment, and was diagnosed with a likely urinary tract infection and acute renal failure. Claimant had no history of any apparent renal problems. The hospital’s physician noted that there was no definitive cause of the infection or the renal failure, but that it was “possible that the patient had some renal failure secondary to his extreme labor in the hot weather.” His employer’s workers’ compensation insurer denied his claim for medical benefits on the basis that the treatment was not for a work injury. Claimant testified that his extreme physical exertion in the heat caused his hospitalization. The ALJ found claimant’s testimony credible, awarded benefits, and the Appellate Division affirmed. 

The Superior Court reversed, finding that the ALJ only relied on equivocal medical evidence about the cause of the renal failure. The Court of Appeals reversed the Superior Court’s decision, holding that claimant’s testimony was sufficient to affirm the ALJ’s award. 

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Sherman Concrete Pipe Co. v. Chinn, Ga. (S08A0473), decided April 21, 2008 

Issue: Was the 1989 amendment to O.C.G.A. § 34-9-13 (e) unconstitutional? 

The Supreme Court held that it was.  

Claimant’s husband sustained fatal work related injuries in January, 1990. Claimant’s death benefits as a surviving spouse are subject to O.C.G.A. § 34-9-13 (e), which prior to 1989 provided: “the dependency of a spouse … shall terminate at age 65 or after payment of 400 weeks of benefits, whichever is greater.” O.C.G.A § 34-913 (e) was amended in 1989 to: “The dependency of a spouse … shall terminate at age 65 or after payment of 400 weeks of benefits, whichever occurs first.” Thus, because claimant’s husband died in early 1990, her benefits were subject to the amendment.  

Claimant received benefits for 13 years, but they were suspended because she had been paid beyond the 400 weeks required under the 1989 amendment. Claimant filed a motion for reinstatement of her benefits and argued that the version of O.C.G.A § 34-9-13 (e) applicable to her was unconstitutional because it incorporated a substantive change in law not contemplated by the title of the Act creating that change (Ga. Const. of 1983 Art. III, Sec. V, Para. III provides: “No bill shall pass which refers to more than one subject matter or contains matter different from what is expressed in the title thereof”). The title of the 1989 amendment was “Official Code of Georgia Annotated- Corrections and Reenactment.”  

The ALJ ruled in favor of the insurer, and the Appellate Division affirmed, however, they noted that they believed the version of O.C.G.A § 34-9-13 (e) applicable to claimant was unconstitutional, but they did not have the jurisdiction to make such a ruling. The Superior Court reversed, holding the 1989 version of O.C.G.A § 34-9-13 (e) unconstitutional, and the Supreme Court affirmed. The Court held that the title of the 1989 amendment would not put an unknowing Legislator on notice that the act might contain major substantive changes in the nature of the law, therefore it was unconstitutional. 

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Smart Document Solutions, LLC v. Hall, Ga. Ct. of App. (A07A2159), decided March 24, 2008 

Issue: Does the express exemption for “records requested in order to make or complete an application for a disability benefits program” in the Health Records Act apply to records requested in connection with workers’ compensation proceedings? 

The Court of Appeals said it does.  

The Health Records Act, in O.C.G.A §  31-33-3, establishes a fee schedule for medical records copying; the State Board of Workers’ Compensation has a different schedule that establishes lower fees. Plaintiff, a photocopy service, filed an action against the Board, claiming it should be paid according to the medical record photocopying fee schedule of the Health Records Act, rather than the Board’s schedule. The Board filed a motion to dismiss the complaint, and the trial court granted the motion, holding that the Health Records Act’s photocopying fee structure does not apply to “records requested in order to make or complete an application for a disability benefits program,” and that the workers’ compensation scheme qualifies as a “disability benefits program.” 

On appeal, plaintiff argued that the workers’ compensation scheme does not qualify as a “disability benefits program” because it encompasses a range of issues broader than disability only. Plaintiff also argued that the Health Records Act’s exemption only applied to records requested in connection with “applications” for disability benefits programs, and that workers’ compensation claimants do not file an application. 

The Court of Appeals rejected both arguments and affirmed the dismissal. The Court held that the Workers’ Compensation Act’s focus on injury and disability demonstrate that the legislature intended it to function as a disability benefits program, and that a claim or a request for workers’ compensation relief was unquestionably an “application.” 

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McLeod v. Blase, Ga. Ct. of App. (A08A0582), decided March 18, 2008 

Issue: Does the exception to the exclusive remedy provision that allows tort suits against company-employed physicians also apply to company-employed certified athletic trainers?  

The Court of Appeals declined to expand the exception beyond company-employed physicians. 

Claimant, a professional basketball player, brought a malpractice action against his certified athletic trainer. Both parties were employed by the Atlanta Hawks at the time of the alleged malpractice. Claimant had sustained a work-related injury, and argued that the treatment he received from his trainer was negligent and had caused the injury to become permanent. The trainer moved for summary judgment, asserting that as an employee of the same employer as claimant, he enjoyed tort immunity under the exclusive remedy doctrine (O.C.G.A. § 34-9-11 (a)). The trial court granted summary judgment. 

Claimant argued on appeal that Davis v. Stover, 258 Ga. 156 (366 S.E.2d 670) (1988), and Downy v. Baxley, 253 Ga. 125 (317 S.E.2d 523) (1985), established an exception to the exclusive remedy provision that allows tort suits against company-employed physicians. Claimant said since his trainer was a licensed medical professional providing professional services, the exception should apply. The Court of Appeals declined to expand the exception to certified athletic trainers, and affirmed the judgment. 

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Coker v. Great American Insurance Company, Ga. Ct. of App. (A07A1760), decided February 19, 2008 

Issue: Can a claimant bring an action against an insurance company that is the parent corporation of his employer’s workers’ compensation carrier?  

The Court of Appeals said no, holding that the insurance company was entitled to immunity under the exclusive remedy provision in O.C.G.A § 34-9-11 (a). 

Claimant was working for Mayo Company, Inc., when a substantial portion of his fingers were amputated by a hydraulic shearing machine. Claimant sued several defendants, including Great American Insurance Company, which had performed safety inspections of Mayo’s premises prior to the accident. Great American had performed the inspections in connection with Mayo’s worker’s compensation policy with American National Fire Insurance Company, a wholly owned subsidiary of Great American. 

Great American moved for summary judgment arguing that it was entitled to tort immunity under O.C.G.A § 34-9-11 (a) because its wholly owned subsidiary, American National received tort immunity as Mayo’s workers’ compensation carrier and alter ego. The trial court granted summary judgment to Great American, and the Court of Appeals affirmed. The Court held that when a subsidiary is entitled to immunity under the exclusive remedy doctrine, because it is the “alter ego” of an employer, the parent company of that subsidiary is entitled to the same immunity. 

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L & S Construction et al. v. Lopez, Ga. Ct. of App. (A07A1890), decided November 26, 2007 

Issue: Was it proper for the superior court to reverse the Board’s denial of assessed fees where the defense proffered some evidence to support its position?

The Court of Appeals said it was not. 

Claimant was injured while working on a construction job. He filed a workers’ compensation claim and the ALJ concluded he was an employee of L & S Construction, a subcontractor for Bob St. John Construction. Claimant was awarded indemnity and medical benefits. L & S was ordered to pay attorney fees to claimant and St. John for “unreasonable defense of [the] claim.” The Appellate Division affirmed the award of benefits but reversed the award of attorney fees holding that L & S defended the claim reasonably because of the evidence they provided regarding claimant’s employment status. L & S presented evidence that claimant was employed by an uninsured individual and not L & S, making St. John liable as the statutory employer.  

The Superior Court reversed, finding that “there were no reasonable grounds to dispute the employment status of the injured worker.” The Court of Appeals reversed the superior court’s holding based on the “any evidence” rule. “An employer’s defense of a claim may be reasonable even if it is not ultimately successful.” Autry v. Mayor etc. of Savannah, 222 Ga. App. 691, 692 (475 S.E.2d 702) (1996). 

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YKK (USA), Inc, et al. v. Patterson, Ga. Ct. of App. (A07A1122), decided September 13, 2007 

Issue: Can the Superior Court remand a case directly back to the ALJ? 

Looking to the Workers’ Compensation Act, the Court of Appeals held that the Superior Court may remand a case to the State Board on specific grounds for further proceedings, but may not remand a case directly to the ALJ. 

Claimant was diagnosed with complex regional pain syndrome, and after the diagnosis, claimed that she torn a muscle while pushing a cart at work. There was conflicting evidence regarding whether she initially denied a work injury, and conflicting medical opinions regarding whether she had suffered a torn muscle. The ALJ denied her request for benefits, noting that she had not complained of pain at the time of the accident. The Appellate Division affirmed, but did not rely on the ALJ’s finding, holding instead that claimant did not prove her injury by a preponderance of the evidence. The Superior Court remanded the case to the Trial Division on the grounds that the ALJ had overlooked evidence of the claimant’s reports of pain. 

The Court of Appeals held that it was improper for the Superior Court to remand the case directly back to the ALJ, and that it was error for the Superior Court to vacate the Board’s award. Because there was some evidence to support a denial of the claim (the conflicting medical opinions), the Board’s award could not be disturbed on appeal.  

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Paschall Truck Lines, Inc. v. Kirkland, Ga. Ct. of App. (A07A1023), decided September 11, 2007 

Issue: Can an employer assert its subrogation lien against a tort suit in Georgia, when the employee received his workers’ compensation benefits pursuant to the laws of a state with concurrent jurisdiction? 

The trial court said it cannot. 

Claimant was injured in a car accident while performing his work duties. Kentucky and Georgia had concurrent jurisdiction over claimant’s injuries. Claimant received benefits under Kentucky law, and then settled his claim in both states. Georgia’s State Board of Workers’ Compensation approved the settlement.  

Claimant filed a tort suit in Georgia against a third party involved in the accident, and claimant’s employer asserted its subrogation lien for the workers’ compensation benefits paid. Claimant settled his tort suit and moved to extinguish the subrogation lien, claiming that because the workers’ compensation benefits were paid under Kentucky law, and not Georgia law, the employer was barred from recovery under Georgia’s subrogation statute (O.C.G.A § 34-9-11.1). To support his claim that O.C.G.A § 34-9-11.1 should not apply, claimant presented evidence that he had not been fully compensated. The trial court agreed with claimant and held that the Georgia subrogation statute did not apply. 

The Court of Appeals did not reach the question of whether O.C.G.A.§34-9-11.1 Permitted Recovery Of Workers’Compensation benefits paid pursuant to Kentucky law, holding the employer could not recover because it failed to carry its burden of proof. Claimant presented evidence that he had not been fully compensated, and the employer provided no evidence to the contrary. Thus, the employer failed to prove that claimant had been fully paid.
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City of Atlanta v. Roach, (Court of Appeals  A09A0456, April 8, 2009)

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MSA Allocations: Prescription Drug Costs

For MSA proposals submitted to CMS on or after 6/1/2009, CMS is changing
its policy to provide for independent pricing of prescription drug costs
using average wholesale price.  The 4/3/2009 CMS memorandum discussing
this policy change can be found *here*.
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Summary of 2008 Amendments to Rules

http://sbwc.georgia.gov/vgn/images/portal/cit_1210/24/36/116327331Summary2008.pdf

 

State Board Rules, effective 7/1/2008

http://sbwc.georgia.gov/vgn/images/portal/cit_1210/25/59/116325746Rules2008.pdf

 

Summary of 2008 Legislative Updates

http://sbwc.georgia.gov/00/article/0,2086,11394008_11400545_116446681,00.html

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MSA Allocations: Life Expectancy Information

Pursuant to the May 20, 2008, policy memo from the Centers for Medicare and Medicaid Services (CMS), effective July 1, 2008, all MSA allocations must use the CDC Table 1 (All American Table) life expectancy table for Workers’ Compensation Medicare Set-Aside (MSA) proposals. The table can be found here.

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New Medicare Reporting Requirement for Workers’ Compensation, Liability, and No-Fault Insurers and Self-Insurers

A new law, complete with a fine of up to $1,000 per day, has been enacted to require insurers to notify Medicare when a Medicare-eligible person has settled a claim under tort, w/c, etc. This law takes effect July 1, 2009 (the first day of the first calendar quarter which is 18 months after the enactment)

PL 110-173, December 29, 2007, 121 Stat 2492

42 U.S.C. 1395y(b) is amended by adding at the end the following new
paragraphs:

(8) REQUIRED SUBMISSION OF INFORMATION BY OR ON BEHALF OF LIABILITY INSURANCE (INCLUDING SELF-INSURANCE), NO FAULT INSURANCE, AND WORKERS' COMPENSATION LAWS AND PLANS.--

(A) REQUIREMENT.--On and after the first day of the first calendar quarter beginning after the date that is 18 months after the date of the enactment of this paragraph, an applicable plan shall--

(i) determine whether a claimant (including an individual whose claim is unresolved) is entitled to benefits under the program under this title on any basis; and
(ii) if the claimant is determined to be so entitled, submit the information described in subparagraph (B) with respect to the claimant to the Secretary in a form and manner (including frequency) specified by the Secretary.

(B) REQUIRED INFORMATION.--The information described in this subparagraph is--

(i) the identity of the claimant for which the determination under subparagraph (A) was made; and
(ii) such other information as the Secretary shall specify in order to enable the Secretary to make an appropriate determination concerning coordination of benefits, including any applicable recovery claim.

(C) TIMING.--Information shall be submitted under subparagraph (A)(ii) within a time specified by the Secretary after the claim is resolved through a settlement, judgment, award, or other payment (regardless of whether or not there is a determination or admission of liability).

(D) CLAIMANT.--For purposes of subparagraph (A), the term 'claimant' includes--

(i) an individual filing a claim directly against the applicable plan; and
(ii) an individual filing a claim against an individual or entity insured or covered by the applicable plan.

(E) ENFORCEMENT.--

(i) IN GENERAL.--An applicable plan that fails to comply with the requirements under subparagraph (A) with respect to any claimant shall be subject to a civil money penalty of $1,000 for each day of noncompliance with respect to each claimant. The provisions of subsections (e) and (k) of section 1128A shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under section 1128A(a). A civil money penalty under this clause shall be in addition to any other penalties prescribed by law and in addition to any Medicare secondary payer claim under this title with respect to an individual.

(ii) DEPOSIT OF AMOUNTS COLLECTED.--Any amounts collected pursuant to clause (i) shall be deposited in the Federal Hospital Insurance Trust Fund.

(F) APPLICABLE PLAN.--In this paragraph, the term 'applicable plan' means the following laws, plans, or other arrangements, including the fiduciary or administrator for such law, plan, or arrangement:

(i) Liability insurance (including self-insurance).
(ii) No fault insurance.
(iii) Workers' compensation laws or plans.

(G) SHARING OF INFORMATION.--The Secretary may share information collected under this paragraph as necessary for purposes of the proper coordination of benefits.

(H) IMPLEMENTATION.--Notwithstanding any other provision of law, the Secretary may implement this paragraph by program instruction or otherwise."