Workers' Compensation Case Law - Fallin v. Merritt Maintenance & Welding, Inc.

The Georgia Court of Appeals announced its decision in the case of Fallin v. Merritt Maintenance & Welding, Inc. on January 19, 2007. This case involves a change in condition of the injured worker like so many recent cases from Georgia's appellate courts. My opinion is that we will continue to see more and more change in condition cases as the defense bar, over the past few years, has waged a war using the change in condition theory as its primary weapon. Typically, this involves insurance company lawyers filing hearing requests (many of them frivolous, I might add) which assert a change in condition for the better.

The Fallin case is different, though. Although there are two holdings in this case, my opinion is that this case is a victory for the injured worker. Now, it is appears clear that when a notice to controvert is filed that does not pay all benefits currently due, including penalties, it is an invalid controvert.

In this case, the injured worker was hurt in 1998 and sought additional weekly benefits some 7 years later. This case stands for at least 2 propositions. First, "An employer's failure to pay all benefits currently due before filing a notice to controvert under O.C.G.A. 34-9-221(h) renders that notice to controvert invalid." In Fallin the term "all benefits due" includes penalties for late payments. This is good for the injured employee.

Second, this case seems to say that an employer can still assert a change in condition under O.C.G.A. 34-9-221(i) even if it files an invalid controvert (i.e. one that, as in Fallin, is filed without all benefits currently due being paid). Obviously, this part of the ruling is a bad for the injured worker.

Overall, this is a good case for employees who are hurt in an on-the-job accident. If the employer does not follow the law when filing a controvert by paying all benefits and penalties owed, the controvert is invalid. While an employer may still fight the case based-upon a change in condition theory, the burden of proof would then rest on the employer. Also, attorneys' fees could be assessed more often against employers and their workers' compensation insurers for not filing a timely controvert. This is due to the fact that filing an invalid controvert seems to now be a nullity and, accordingly, tantamount to filing nothing at all. Only time will tell, however, as this area of Georgia workers' compensation law continues to evolve.