Case Law Update - TIG Insurance Co. v. Dust-Away, Inc. et al.
On February 6, 2007 the Georgia Court of Appeals handed down a decision in what I call a two-insurer battle case. Often, there is a dispute between two or more insurance companies as to which company bears responsibility for an injured claimant's medical treatment and income benefits. TIG Speciality Insurance Co. v. Dust-Away, Inc. is one of these cases.
The facts in this case are straight forward. In December of 2000, the claimant was injured while working for Dust-Away. At this time, Dust-Away was insured by TIG. In February of 2002, Dust-Away changed workers' compensation insurance companies from TIG to Zenith. In May of 2002, the injured worker became unable to work due to the on the job injury and TIG began to pay income benefits to the injured worker.
The Court of Appeals holding is that the insurance company providing coverage on the date the employee was no longer able to work because of the aggravation or worsening of his or her injury bears responsibility for payment of income benefits.
Another issue in the case is the so-called Statute of Limitations contained in O.C.G.A. 34-9-221(h) which reads as follows:
Where compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed with the board within 60 days of the due date of first payment of compensation.
The Court of Appeals in this case re-affirmed the principle that this 60 day limitation should not apply to two insurance companies in cases where the compensability of the claimant's injury is accepted.
My opinion of this case is while it does not seem to affect injured workers directly, it further solidifies O.C.G.A. 34-9-221(h) as to injured employees. This Section protects a injured worker in Georgia who has a workers' compensation case in that an employer and insurer have 60 days from the date of first payment of income benefits to controvert or deny a claim. In my practice, I refer to this as the "81 Day Rule". Income benefits are due by the 21st day after an on the job injury. Some attorneys wait or "lay low" until the 81st day after the injury, if weekly benefits are being paid, to file their WC-14 Notice of Claim. The reason for this is to prevent an insurance company from controverting a claim once they know the injured worker has retained an attorney.
This case makes it clearer as to which insurer is responsible for an injured workers' benefits in a two-insurer battle.
