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."
