Georgia Law Blog

On January 20, 2009, the Georgia Court of Appeals decided the case of Williams v. ConAgra Poultry of Athens. This case involved the employee seeking catastrophic injury payments pursuant to O.C.G.A. § 34-9-261. This case involved the interplay of the two-year change in condition statute of limitations pertaining to additional income benefits and the catastrophic designation. The Court held that O.C.G.A. §34-9-104 (b) bar the claim for income benefits, even though the claim could be accepted as catastrophic from a medical and rehabilitation standpoint.

This case emphasizes the important point that attorneys seeking catastrophic designation should not, under current law, rely upon seeking catastrophic designation without requesting additional income benefits above and beyond what had been previously paid. In this case, it appears that more than two years elapsed between the time that weekly income benefits were last paid and the time a Notice of Claim was filed requesting catastrophic designation. It is also interesting to note in this case that the State Board of Workers Compensation apparently encouraged the injured worker to file a third application for catastrophic designation after her first two attempts failed. This case illustrates an important point that a catastrophic designation is a degree of separation from weekly income benefits and entitlements to such benefits. The counter argument in this case is that a catastrophic designation, by its nature, offers an injured worker weekly disability benefits for a long period of time into the future, sometimes for life.

If you or a loved one has questions about whether or not your workers compensation claim can be deemed catastrophic under Georgia law, please contact our office at 770-577-2227 for a free and confidential legal consultation. Mr. Clay has handled many catastrophic workers compensation claims throughout Georgia. We welcome your questions and concerns.

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On February 11, 2009 the Georgia Court of Appeals decided the case of Harris v. Peach County Board of Commissioners. This case involved the basic theory about whether or not an injured worker's on-the-job injury arose out of the course of the employment and in the scope of the employment. The employee suffered a knee dislocation. The administrative law judge and the Georgia State Board of Workers' Compensation upheld that the employee’s case was compensable. However, the Superior Court overturned the case. The whole case depended on whether or not the employee was performing one of her job duties at the time of the accident as she was bending over to pick up her diuretic pill from the floor when she hurt her knee. The Court discussed the fact that it was part of her job duties as a custodian to remove debris from the floor. In addition, she is expected to remove things from the floor, even her own pills. Therefore, the Georgia Court of Appeals overturned the decision of the Superior Court and awarded the injured worker workers’ compensation benefits.

The Court of Appeals in this case held that the Georgia State Board of Workers' Compensation was able to find that the claimant's knee dislocation arose out of her employment. This is probably a good case for injured workers as it expands, to a small degree, circumstances under which they may collect compensation benefits. The big problem in this case was that the claimant dropped one of her own pills prescribed her by a physician and was injured while picking it up off the floor. Apparently, the result may have been different if the employee had not been a janitor (i.e. she would've not been required to pick up the pill). I believe this case falls into such a small category of cases that may not have wide impact on Georgia's workers compensation law.

If you or a loved one has been hurt at work, contact my Douglas County, Georgia law office for a free, no-obligation legal consultation.

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On February 13, 2009 the Georgia Court of Appeals decided the case of Creeden v. Fuentes. In this case, a construction worker was injured while working on a house. The injured worker fell down an elevator shaft. The Court of Appeals held that the exclusive remedy provision of Georgia's Workers' Compensation Act at O.C.G.A. §34-9-11 bars the plaintiffs claim. In addition, the Court held that O.C.G.A. § 34-9-8 applies in this case as well, which regulates claims against contractors in personal injury. This Section reads as follows:

(a) ...a principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the intermediate employer...(d) this Code section shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work on which are otherwise under his control or management.

This case held that even though the contractor was working on the house at the behest of the future homeowner, the fact remains, the contractor still owned the property. Despite the fact that the contractor was working on behalf of the homeowner, the contractor still came under the protection of the exclusive remedy doctrine codified at O.C.G.A. § 34-9-11.

This case presents negative implications for injured workers in Georgia, who attempt to bring personal injury lawsuits based upon serious injuries. Many workers are hurt and construction accidents across the state. Sometimes, it is difficult to figure out who the correct employer is in a contractor/subcontractor setting. More importantly, the law protects certain individuals and companies from personal injury lawsuits when workers are injured on the job. Many times, there are simply no third parties to sue, while other times there are several parties that fall outside of the scope of the exclusive remedy doctrine. Another interesting issue in this case is the interplay between two statutes, specifically O.C.G.A. § 34-9-11 & 34-9-8.

If you or a loved one has been injured on a construction accident site or in another setting in which there are contractors and subcontractors, please feel free to contact our office to discuss your rights. Please understand that this area of law is complicated and ever-changing. Jack Clay, Esq. has handled workers compensation and jobsite accidents throughout the state of Georgia. He is a trial lawyer, located in Douglasville, Georgia. In 2009, he was featured in Super Lawyers Magazine as a Rising Star.

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On February 19, 2009 the Georgia Court of Appeals decided the case of Laurens County Board of Education v. Dewberry. This case involves the issue of whether an employee’s inability to work resulted from his original injury or a change in the condition. The injured worker, a custodian, suffered a knee injury on August 1, 2000. His medical bills were paid by the workers’ compensation insurance company but no weekly income benefits were ever paid. After the custodian returned to work, he sought no medical treatment for his knee pain. At this point, an orthopedic surgeon recommended knee replacement surgery, a very serious procedure. On November 18, 2005, which was over five years after the original date of accident, the worker was unable to work any longer due to knee pain and filed a workers’ compensation claim.

This case involved a dispute between two insurance companies. The first insurance company argued that the employee experienced a fictional new accident on or about November 18, 2005. The second insurance company argued that the employee, instead, experienced a change in condition for the worse under O.C.G.A. 34-9-104. The Court of Appeals held that whether an employee undergoes a change in condition for the worse or a fictional new accident is a question of fact for the administrative law judge. In this case, the administrative law judge evaluated all the facts in question and determined that the employee suffered a fictional new accident on November 18, 2005.

Often, the company will change workers’ compensation insurance companies while claims are pending. Injured workers still working on the job may become reinjured or, as in this case, suffer a fictional new accident. It is under these circumstances that insurance companies often fight. In the legal world, we refer to these fights as “two insurer battles.” Though it may not be apparent, this case was simply about two insurance companies fighting about which would be responsible for the injury. However, there is a deeper level of analysis as well. The insurer, in my opinion, was attempting to expand the scope of the law surrounding the change of condition statute O.C.G.A. 34-9-104. In this regard, the Court of Appeals held that there are no cases that exist in which the voluntary payment of medical benefits constitutes an award so as to allow a claimant to file for a change in condition at a later point. This issue is important as, if payment of medical benefits is construed as an “Award or otherwise” in O.C.G.A. 34-9-104(a), claimants must file a claim for weekly income benefits within two years. In this case, it is conceivable that the custodian could have been timed-barred from receiving additional weekly benefits, as it not clear that a Notice of Claim was filed within two years of the date that the last medical treatment. Fortunately for injured workers, this standard was not adopted by the Court of Appeals.

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On July 10, 2008 the Georgia Court of Appeals decided the case of Keystone Auto v. Hall, 292 Ga. App. 645 (2008). This is a case in which an employee died on the job after having what appears to have been a heart attack. Heart cases are treated especially by Georgia Workers' Compensation laws. O.C.G.A. § 34-9-1 (4) requires an employer in a heart case to prove by a preponderance of the evidence of the conditions were attributable to the performance of usual work of employment before they can be considered an injury.

Perhaps this case is about the heart attack that wasn't. Allow me to explain. In this case, there seems to have been a failure of the doctors to reach a consensus of the exact cause of the claimant's death. Based upon the lack of clarity, the Administrative Law Judge held that the employer failed to overcome a presumption by demonstrating that the claimant's death did not arise out of his employment. Furthermore, the ALJ noted that this claim would not be compensable absent the unexplained death presumption found in Georgia Workers' Compensation Law.

This case is positive for injured workers in Georgia as it upholds the unexplained death presumption as found in Zamora v. Coffee General Hospital, 162 Ga. App. 82 (1982). An employer must rebut a presumption that an employee's death arose out of and in the course of employment if he or she was found dead at the place or he or she could have reasonably been expected to be in the performance of his or her job duties and the death was unexplained. Although in Keystone Auto v. Hall the doctors believed that the claimant had a heart attack, the medical evidence was not definitive as to the cause of death.

This is a good legal decision in that it reinforces the notion that the burden is in the employer to disprove that an employee's on-the-job death is compensable when such death is due to unexplained reasons. In workers' compensation law and other areas of law, either side of a dispute may bear the burden of proof in a case. This presumption can be powerful in close cases where the evidence is not clear as in this case. It is also important to note that in workers' compensation cases, the claimant bears the burden of proof most of the time.

If a friend or loved one has died in an on-the-job accident and there are lingering questions, please call our office for a free consultation. We will do our best to answer your questions in a professional and dignified manner and discuss death benefits under the workers' compensation system.

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On October 17, 2008 the Georgia Court of Appeals decided the case of DeKalb Board of Education v. Singleton, 2008 Ga. App. Lexis 1116. This case involved a psychological injury under O.C.G.A. § 34-9-105(c)(5). The facts of this case are fairly straightforward. A school bus driver arrived for work and found that there was some white powder in her bus. She proceeded to clean the white powder with paper towels and hand sanitizers provided by the employer. After driving her bus for 30 to 45 minutes, she suffered an asthma attack. The employee had previously been diagnosed with asthma and this attack was an aggravation of a pre-existing condition.

The difficulty in this case concerned the employee's claims for a psychological injury. Under Georgia workers' compensation law, in order for a psychological injury to be compensable, it must satisfy two conditions:
(1) It must arise out of an accident at which the compensable physical injury was sustained; and
(2) While the physical injury need not be the precipitating cause of the psychological condition or problems, at a minimum the physical injury must contribute to the continuation of the psychological trauma.

In this case, the Administrative Law Judge found the employee's psychological claim compensable. The State Board of Workers' Compensation affirmed this decision as did the Superior Court. On appeal, the Georgia Court of Appeals found that the Superior Court acted properly.

This is a good case for claimants. Many claimants suffer a psychological fallout from severe on the job injuries. While in this case the claimant suffered psychological distress and anxiety after suffering an asthma attack while driving a school bus, there are more serious injuries that clearly justify psychological care under workers' compensation. It is easy to see why employees who suffer severe injuries may also suffer psychological problems. Whether these psychological injuries while diagnosed as such using such terms as anxiety and depression, the damage can be real and long-lasting. It is also interesting that Georgia requires a physical injury in order to have a compensable psychological claim. This precludes, for example, workers who are under stress from filing workers' compensation cases, at least in Georgia.

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On July 10, 2008 the Georgia Court of Appeals decided the case of McLendon v. Advertising That Works, 2008 Ga. App. Lexis 833. This case involved several dates of accidents and several and numerous WC-14 notices of claims. The attorney for the claimant dismissed with prejudice several WC-14 claims at the hearing. The appeal only concerns one date of accident of June 8, 2004. In this case, the WC-14 that is the subject of this appeal referenced the wrong date of accident. While ordinarily this is not fatal to a claim, the claimant did not show on the record that his claim arose out of a single occurrence or that he had simply been mistaken as to the date of injury.

The claimant also raised the argument that an amended WC-14 was filed which should relate back to the original WC-14 and correct the date of accident issue. However, due to the fact that there are numerous dates of injury in this case and lack of a clear record on appeal, the court of appeals upheld the decision from the State Board of Workers’ Compensation under the any evidence standard.

An issue in this case that I encounter very often concerns the applicability of the Civil Practice Act to Georgia’s workers’ compensation laws. It is my opinion that Georgia’s Civil Practice Act only applies to discovery issues in workers’ compensation cases under O.C.G.A. § 34 9 102(d)(1). I believe the Court of Appeals’ analysis regarding the effect of the Civil Practice Act is correct. Many attorneys attempt to relate provisions of the Civil Practice Act that have nothing to do with discovery to workers' compensation cases.

I believe that this case has potentially negative ramifications for injured workers in Georgia if it is carried too far. First, claimants and their counsel should be certain to explain on the record if there is a discrepancy between the date of injury referenced in a WC-14 and the date of injury referenced at a hearing. I believe in the McLendon case, a simple explanation would have made things a lot clearer. Furthermore, there seems to be more ambiguity in this case as there were numerous dates of injury which were dismissed with prejudice at the hearing by the attorney for the claimant. This considerably muddied the waters.

The crux of the problem in this case is as follows. The worker was injured on June 8, 2004. When he hired his attorney, a WC-14 was filed on March 14, 2005 which is clearly within the one year statute of limitations applicable to the facts of this case under O.C.G.A. § 34-9-82. The problem lies in the fact that this WC-14 listed an accident date of July 16, 2004 and not the June 8, 2004 date of accident. Later, on July 12, 2005, the attorney filed a claim to correct the date of accident from July 16, 2004 to June 8, 2004. I believe the court of appeals in this case felt bound to rule against the claimant for the reasons discussed previously as well as the fact that the Claimant referred to medical records and a transcript which were not part of the appellate record. The Court of Appeals commented on this and stated that it is the responsibility of the parties to ensure that the documents relative to the disposition of an appeal be duly filed with the clerk of the Court of Appeals. In this case, I believe the result may have been different if the judges on the Court of Appeals had the hearing transcript and medical records in their possession.

This is fact-intensive decision based on very convoluted facts. I had to re-read the opinion several times to get a clear understanding of what happened. The weight this case should carry as binding case law should be minimal, if any. This is primarily due to the fact that the Court of Appeals did not have a complete record before it in deciding this appeal.

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On November 14, 2008, the Georgia Court of Appeals decided the case of Holder v. City of Atlanta, 2008 Ga. App. Lexis 1236. This case involved enforcement of a settlement agreement at the Superior Court level. This case emphasized the point that, under O.C.G.A. § 34-9-105(b), if a Superior Court does not hear (or continue hearing on) an appeal from a decision by the Board within 60 days from the date of docketing, the Board’s decision “shall be considered affirmed by operational law.” Accordingly, the decision of the State Board of Workers’ Compensation approving the settlement agreement was affirmed by operation of law as the Superior Court lost jurisdiction to enter any order at a later date.

This case emphasizes the importance for both attorneys for claimants and attorneys for employer/insurers to carefully study and follow the rules for appealing cases in Georgia. It has been my opinion for some time that the workers’ compensation appeals process in Georgia should be streamlined by eliminating the Superior Court’s role in the appellate process. Workers’ compensation cases are heard by Administrative Law Judges throughout the state. After an Award is issued, the aggrieved party may file an appeal to the full Board, a three judge panel, which constitutes the State Board of Workers’ Compensation. Thereafter, an appeal may be made to the Superior Court of the Judicial District covering the county in which the original accident occurred. Next, there is the opportunity for a discretionary appeal to the Georgia Court of Appeals. Finally, there is a possibility of a discretionary appeal to the Georgia Supreme Court.

While the law would have to be changed, it would greatly streamline the system in workers’ compensation cases if cases were directly appealable from the State Board of Workers’ Compensation to the Georgia Court of Appeals. I have found in my experience that many superior court judges do not deal regularly with workers’ compensation cases. Moreover, many have to do extensive research regarding workers’ compensation law and may not understand or appreciate the nuances of this narrow area of practice.

If you or a loved one has been injured in Douglasville, Douglas County, GA, or throughout Georgia, please feel free to call our office for a free and confidential phone consultation.

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On August 15, 2008 the Georgia Court of Appeals decided the case of Taylor v. Peachbelt Properties, Inc., 2008 Ga. App. Lexis 932. This case involved the enforcement of a judgment in the Superior Court after a workers’ compensation case was decided. In this case, the claimant filed a workers’ compensation case against an uninsured employer. While many employers in Georgia are uninsured, the law is clear that employers who meet certain requirements must carry workers’ compensation insurance. The remedy is a personal responsibility of the “owners” of the corporation, despite the fact that the business entity may be a corporation or limited liability company.

In this case, the original workers’ compensation Award was established in 1995. This case involved the renewal of this original judgment in the Superior Court many years later. I am including an article on this case as many workers’ compensation claimants’ attorneys handle cases involving uninsured employers. This case emphasized the importance of following all procedural protocol after a judgment is obtained in the Superior Court, especially for claimants’ attorneys who have judgments against employers. In this case, a motion to amend was filed after the proper time (i.e. not in the same term of court as defined by Code in each Judicial District throughout Georgia) in the Superior Court. Thus, the Superior Court had no authority to amend its prior judgment.

Workers’ compensation attorneys are cautioned to carefully review the legal requirements concerning judgments if they pursue such judgments against uninsured employers. Another reasonable suggestion would be for the claimant’s counsel to consult with or associate with an attorney who specializes in post-judgment collections.

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On June 18, 2008 the Georgia Court of Appeals decided the case of Parham v. Swift Transportation Company, Inc., 292 Ga. App. 53 (2008). This case involved two primary issues important to injured workers in Georgia. First, this case emphasized the fact that the testimony of an injured worker is very important, perhaps as important as or more important than the testimony of a medical expert. This case re emphasized that, while medical questions are to be established by physicians as expert witnesses and not by a layman, a physician may testify as to his or her opinion as to the cause of the injury. However, the ultimate decision as to whether or not an injury is related to a work accident is a legal decision. Thus, the claimant’s credibility and testimony is very important.

The second issue in this case is medical bills that were unpaid by the employer/insurer. The Court of Appeals affirmed the State Board of Workers’ Compensation decision that medical bills of $7,195.00 that the injured worker suffered after having a heat stroke should be paid.

This case is important to the injured worker. In many cases, the doctor’s opinions may vary greatly as to the cause of a particular medical condition. In most workers’ compensation cases, medical evidence is critical. Many doctors are known to be friendlier to the side of the employer/insurer while other doctors are known to be friendlier to injured claimants. I am certain that the Administrative Law Judges are keenly aware of this situation. One detail in this case that I do not want to overlook is the credibility of the claimant. The Georgia Court of Appeals noted that the ALJ found that, “after personally observing the employee’s demeanor and testimony, I (Administrative Law Judge) find the employee very credible.”

As a claimant’s attorney handling workers’ compensation cases throughout Georgia, I believe that claimant’s credibility is extremely important to the success of any case. In Parham, it appears to have made all the difference in the world as the medical evidence did not appear to be 100% clear as to whether or not the injured worker’s heat stroke was a result of the on-the-job injury.

If you are an attorney reviewing this article and would like to discuss a potential workers' compensation referral with our office, please contact Jack Clay anytime. While our office is located in Douglasville, which is just outside Atlanta, Mr. Clay handles cases state-wide and has tried workers' compensation cases throughout Georgia.

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On October 17, 2008, the Georgia Court of Appeals decided the case of Clarke v. Country Home Bakers, 2008 Ga. App. Lexis 1109. This case involved a simple issue of whether an inmate who suffered serious injuries while working at bakery should recover workers’ compensation benefits. In this case, the inmate was not allowed to recover workers’ compensation benefits in the form of medical care and income benefits due to the fact that he was working for a private employer through the Department of Corrections work release program. Thus, he was not an employee under the Workers' Compensation Act.

There is a law in Georgia that excludes, from workers' compensation coverage, inmates or persons participating in a work release program, community service program, or similar program as part of the punishment for violation of a state’s law

O.C.G.A. 34 9 1(2) states, in pertinent part, that, "Inmates or persons participating in a work release program, community service program, or similar program as part of the punishment for violation of a municipal ordinance pursuant to Code Section 36-32-5 or a county ordinance or a state law shall not be deemed to be an employee while participating in work or training or while going to and from the work site or training site, unless such inmate or person is employed for private gain in violation of Code Section 42-1-5 or Code Section 42-8-70 or unless the municipality or county had voluntarily established a policy, on or before January 1, 1993, to provide workers' compensation benefits to such individuals."

In this case, the inmate’s work was voluntary. The Claimant's argument was that because his work was voluntary, it was not "part of the punishment" as stated in the statute in question. The Court of Appeals affirmed the decision that because the work release program was “part of his punishment”, the claimant was not an employee under the law for workers’ compensation purposes.

While this case presents potentially negative implications for injured workers, this case would only affect the rather rare instance in which inmates in work release programs are injured. I am not sure whether this decision or the law upon which it is based make a whole lot of sense in all cases. For example, many private companies benefit from prison labor or work release programs. This case and the statute discussed above seem to insulate such employers from workers' compensation claims when people get hurt on-the-job. While, perhaps, this "protection" is an incentive to hire, train, and help people in the justice system, this could adversely affect a worker who is severely injured in a work accident.

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On June 27, 2008 the Georgia Court of Appeals decided the case of United Grocery Outlet et al v. Bennett, 2008 Ga. App. Lexis 772. In this case, a claimant was paid workers’ compensation benefits in the form of temporary total disability benefits. The employer stopped paying the benefits and failed to file a Form WC 2. More than two years lapsed from the last date the claimant was paid temporary total disability benefits until the time she sought additional income benefits. As I have previously discussed in other articles, the statutes of limitations under Georgia workers’ compensation law can be confusing and need to be carefully analyzed.

O.C.G.A. § 34-9-104(b) states that a claimant must file a claim for additional weekly income benefits within two years from the last payment of such income benefits if the worker is seeking additional weekly benefits. The Court of Appeals was very clear in this case in holding that, despite the fact that a Form WC 2 was not filed telling the employee that her income benefits were suspended, she was barred by the statute of limitations.

This decision is bad for claimants. This case represents a philosophy on behalf of the Georgia Court of Appeals to strictly adhere to statutes of limitation in the workers’ compensation arena. It is also interesting to note that the law requires that an employer file a Form WC¬ 2 when commencing or suspending weekly income benefits. However, the Court of Appeals rationalized that this is not a reason to extend the statute of limitations. In sum, the Court of Appeals found that, “…we find no grounds for delaying or extending the statute of limitations based upon such non compliance.” I believe that the filing of a Form WC-2 and notice to the employee is essential in workers’ compensation cases. Injured workers should be informed that their weekly workers’ compensation checks are being suspended and the reason behind the suspension. This case is also bad for the injured worker as a person hurt on workers’ compensation can get his or her weekly benefits cut off, continue to receive medical care paid by the Employer/Insurer, and be time-barred if they later seek weekly benefits due to a worsening in their medical condition or an economic condition. Next, this case sub-verses what is commonly referred to as the notice requirement, depriving an employee of notice of suspension of income benefits so they may make a decision as to what rights they need to pursue.

Injured workers, untrained in the nuisances of the law, may not understand the significance of certain types of benefits. For example, many mix-up temporary total disability benefits (TTD) with permanent partial disability benefits (PPD). The Georgia Supreme Court also denied cert in this case recently.

If you or a friend has been injured at work and face confusion about what rights to which you are entitled, please call my office for a free no-obligation consultation.

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On June 26, 2008, the Georgia Court of Appeals decided the case of Freeman v. Brandau et. al, 2008 Ga. App. Lexis 760. This case stemmed from the tragic events that took place at the Fulton County Courthouse in which several people were murdered. Specifically, Julie Ann Brandau was Judge Barnes' court reporter in Fulton County Superior Court. Her estate sued the Fulton County Sheriff Myron Freeman and eight employees of the Sheriff's Department for negligence. Freeman and Fulton County argued that Ms. Brandau, at the time of her death, was a co employee of Fulton County Sheriff Myron Freeman. Thus, a motion to dismiss was filed citing the exclusive remedy provision of Georgia's Worker's Compensation Act.

The primary reason that many attorneys and plaintiffs want to forego the workers' compensation system and, instead, file a civil lawsuit is that the damages in a personal injury or wrongful death claim tend to be substantially higher than settlements in workers' compensation cases. In this appeal, the Court of Appeals held that the Sheriff of Fulton County was not immune from suit as a co-employee of the decedent. Thus, the case was allowed to go forward. This case broadens the rights of plaintiffs suing co-employees in the narrow situation where the co-employee may be an elected official. However, the law cited in this case allows elected officials to be exempt, and therefor immune from lawsuits, if the municipality takes certain action. In this case, key evidence focused on the lack of action by Fulton County that may have likely precluded this lawsuit.

If you or a loved one has been injured while working in Atlanta, Fulton County, or anywhere throughout Georgia, please feel free to contact our office for a free consultation.

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On July 8, 2008, the Georgia Court of Appeals decided the case of Rheem Manufacturing Company v. Butts, 2008 Ga. App. Lexis 814. In this case, an injured employee filed a medical malpractice lawsuit against a physician employed by his employer. The claimant had a knee injury and sought treatment from a physician who was employed by an on-site medical clinic at Rheem Manufacturing Company. The medical malpractice lawsuit was based upon the failure to diagnose cancer.

The Georgia Court of Appeals held that the employee could not maintain the personal injury lawsuit under the exclusive remedy doctrine found in Georgia workers’ compensation law. The Court reasoned that the physician was a co-employee of the claimant, Mr. Butts. Also, the Court of Appeals noted that O.C.G.A. § 34-9-203(b) precludes damages for malpractice by a physician or surgeon furnished by an employer at an on-site clinic.

This has been a popular theme in recent workers’ compensation case law: that claimants have tried to sue employers, co-employees and third-parties for personal injury, medical malpractice and wrongful death. Recently, we have seen expansion in some areas and limiting and contraction in others. This case again reemphasizes the fact that an injured worker cannot generally sue a co-employee for torts committed by the co-employee under Georgia workers’ compensation law.

If you have been injured at work and have questions about whether you can file a lawsuit for personal injury or have questions about a workers' compensation benefits such as weekly benefits and medical care, please contact our office for a free telephone consultation.

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On May 2, 2008, the Georgia Supreme Court decided the case of Sherman Concrete Pipe Co. v. Chinn. This case involves dependency benefits for a wife whose husband died in an on-the-job injury in 1990. While death cases are somewhat rare in Georgia workers’ compensation law, the Atlanta area has its fair share of workers who die on the job due to the vast population and diverse workforce. Primarily, many death cases were attributed to industries such as manufacturing and construction. In Douglas County, Georgia, where my Georgia workers’ compensation practice is located, there is historically a mix of service and manufacturing jobs. In the other counties in which I practice such as Paulding County, Haralson County and Carroll County, there are significant manufacturing and construction jobs in which workers may become severely injured or die in workers’ compensation accidents.

This case held that language contained in the law in 1990 stating that a dependent spouse’s entitlement to income benefits shall end at 65 or after payment of 400 weeks of benefits is unconstitutional. This case is a victory for injured workers’ families. However, the small number of injured workers’ families that this case impacts may dilute the overall positive effect of this case. Specifically, the court found that the 1989 version of OCGA 34-9-13(e) was unconstitutional.

The Georgia Supreme Court rationalized its decision on an old principle of Georgia Constitutional Law mandating that the content of bills passed by the Georgia General Assembly must correspond to the title of the specific act. The implications of this case could be very narrow or far-reaching, depending on the number of future legal challenges. Narrowly construed, this case applies only to the version of O.C.G.A. 34-9-13 that was in effect in 1990. The current statutory language is similar. In any event, this case was a victory for the widow of the worker who was killed in an on the job accident.

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On March 24, 2008 the Georgia Court of Appeals decided the case of Smart Document Solutions v. Hall. Smart Document Solutions is an Atlanta based company that provides photocopying services to physicians and other medical providers. In this day and age, it becomes necessary for attorneys to order medical records in workers’ compensation and personal injury cases in Douglas County and throughout Georgia. I will attest first-hand that much of my small law firm’s time, which is located in Douglasville, Georgia, is spent ordering medical records and reviewing medical records and bills. In this case Smart Document Solutions filed a lawsuit against the Georgia State Board of Workers' Compensation seeking guidance regarding the appropriate free structure for photocopying services in workers’ compensation cases. Basically, there are two separate sources of authority governing the cost of photocopying medical records. First, there is a statute at OCGA 31 33 3(a) which is known as the Health Records Act. In the past, this law allows a higher cost for photocopying medical records than the rules set out by the State Board of Workers' Compensation. The simple issue in this case seems to be that Smart Document Solutions wanted some guidance as to what to charge parties for photocopying under the higher Georgia statute which allows a higher rate or to charge under the workers’ compensation scheme which allows a lower rate. The Court of Appeals in Atlanta, GA, held that the Georgia State Board of Workers' Compensation, rather than the Health Records Act, regulates medical photocopying charges in workers’ compensation cases.

This case is generally good for injured workers in that costs are a primary concern when ordering medical records. As previously discussed, my Douglasville Georgia workers’ compensation law firm handles many on-the-job injury cases. In each case, we must order medical records. We order medical records from providers throughout Atlanta and West Georgia, including Douglasville, Dallas, Hiram, Carrollton, and Haralson County. While sometimes the medical records are provided by the opposing attorney, the cost for these records is to be paid by whoever orders the medical records. This case actually stems from the proposition that the claimants may save money in costs which, if advanced by the law firm, eventually are deducted from the settlement at the end of the case. Unfortunately, the Georgia State Board of Workers' Compensation adopted the higher costs in the Health Records Act a short time prior to this case being decided.

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On March 18, 2008 the Georgia Court of Appeals decided the case of McLeod v. Blase. This case presents another intersection where workers' compensation law meets tort law. This case was a personal injury case arising from Cobb County State Court, which is near Atlanta, Georgia, involving an athlete who was injured and tried to sue the athletic trainer for professional malpractice. The potential exposure of company doctors to personal injury lawsuits has been an interesting area of law within workers’ compensation, especially in Georgia. Historically, many companies had medical providers located at their factories or manufacturing facilities for employees to see if they were sick or hurt on the job. In McLeod, a professional basketball player was hurt and the athletic trainer was employed by the National Basketball Association. I believe that the player was playing for the Atlanta Hawks professional basketball team.

This case presents an interesting intersection between Atlanta professional sports and Georgia workers’ compensation law. In this case, the judge in Cobb County State Court granted the trainer’s Motion for Summary Judgment and disallowed the injured worker to sue the athletic trainer for the Atlanta Hawks. The rationale for this was that the athletic trainer was protected under the exclusive remedy provision of OCGA 34 9 11 as the athletic trainer was deemed a co employee to the professional athlete. This decision was upheld by the Georgia Court of Appeals. This case presents a hurdle for injured people in Atlanta and throughout Georgia. While the actual scenario in this case is rather narrow, it further limits the ability of employees who are injured through negligence of third parties such at athletic trainers to bring personal injury lawsuits. Georgia falls within a majority of states which do not allow tort actions against co employee physicians and other medical professionals.

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Posted In: Georgia Workers' Compensation Case Update

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I would first like to thank my clients, the legal community, and others for your continued referrals. As I have written before, my Douglasville, Georgia law firm handles workers' compensation claims throughout the State of Georgia. While many of my clients live here in Douglas County, many live in Atlanta, Paulding County, Carroll County, Lithia Springs, Cobb County, Hiram, Dallas, and Carrollton. Thank you for your continued referrals.

The case of Coker v. Great American Insurance Company was decided by the Georgia Court of Appeals on February 19, 2008. The issue in this case was whether an injured worker who received workers' compensation benefits could sue her workers' compensation insurance company in a personal injury lawsuit due to the negligence of the workers' compensation insurance company’s to properly inspect a machine which ultimately severed nine of her ten fingers. The Court of Appeals held that the workers' compensation insurance company was immune from suit under OCGA 34-9-11(a) since it provided workers' compensation benefits to the plaintiff’s employer through one of its wholly owned subsidiaries. In this case, there were two insurance companies involved. First, there was the insurance company that allegedly performed the negligent inspection of the machine. Second, there was the other insurance company that actually insured the employer. In this case, the company that insured the employer was a wholly owned subsidiary of the insurance company that performed the inspection. The inspection allegedly took place as part of an audit.

Insurers in Georgia often conduct audits on the premises of their insureds in order to ensure compliance. It is my experience that workers' compensation insurance companies in Georgia are often involved in risk management with employers. While, certainly, the extent of involvement varies from company to company, I believe most companies have a vested interest in reducing injuries to workers, especially in manufacturing factory and construction industries which tend to have higher rates of injured workers.

This case presents negative implications to injured workers in Georgia for a few reasons. First, the snowball effect of continually limited injured worker’s rights to bring third-party lawsuits based on personal injury has grown over the past several years in Georgia. While, admittedly, this is an unusual case, it nevertheless could stand to limit injured worker’s rights in the future. Second, the Court of Appeals held in this case that the workers' compensation insurer is considered to be an alter ego of the actual employer for purposes of immunity. This may mean, in the future, that workers' compensation insurer's immunity from injured worker’s personal injury lawsuits could be extremely limited or non-existent.

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On September 13, 2007, the Georgia Court of Appeals issued its decision in the case of YKK (USA), Inc. et al. v. Patterson. This case involved two important issues. First, the Court of Appeals held that the injured worker did not prove, by a preponderance of the evidence, that she suffered an on the job injury in accordance with Georgia workers’ compensation law. Second, the Court of Appeals found that the Superior Court errored by remanding the case to the Administrative Law Judge instead of the State Board of Workers’ Compensation.

This case presents an interesting issue. In Georgia, there are several levels of appeal an injured worker or employer / insurer must go through before attempting to reach the Georgia Court of Appeals. In my opinion, there are too many levels of appeal. For example, in every appeal that reaches the Georgia Court of Appeals, there have already been two levels of appeal. First, one must appeal the decision of the Administrative Law Judge to the State Board of Workers’ Compensation. Second, the decision of the State Board of Workers’ Compensation can be appealed to the Superior Court of the county where the injury occurred. Only then can a party make application for discretionary appeal to the Court of Appeals. Thereafter, the Court of Appeals’ decision can attempt to be appealed to the Georgia Supreme Court. I often wonder if some of the red tape could be cut in order to streamline the appeals process, especially for injured workers.

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On September 11, 2007, the Georgia Court of Appeals issued its decision in Paschall Truck Lines v. Kirkland. In this case, the injured worker was hurt in a truck accident when another commercial vehicle struck the vehicle he was driving. He collected filed a Georgia workers' compensation claim and a Kentucky workers' compensation claim. When the Georgia personal injury / truck accident claim settled for $100,000.00, the workers' comp. insurance company sought to recover money based on a purported lien.

This case is governed by O.C.G.A. 34-9-11.1(b) which states that for an insurer to successfully intervene and recuperate money paid to an injured worker in a third party personal injury case, the insurer must show that the injured worker was fully and completely compensated for economic and non-economic damages.

This case was a victory for the injured worker. Workers' compensation insurers in Georgia often try to get paid back from personal injury settlements or verdicts that injured employees bring against third-parties. In some states, the workers' compensation insurance company has strong rights of recovery. This is not the case in Georgia. I have been successful in my handling of similar cases in maximizing the recovery on behalf of my clients. Interestingly, some claimants' attorneys are especially loathe to repay a workers' compensation insurer because they feel the fruit of their efforts (i.e. compensation) should go to their clients and not the insurance company.

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Posted In: Georga Personal Injury Case Update , Georgia Workers' Compensation Case Update

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As I mentioned in a recent article, the concept of statutory employment has a long and somewhat misunderstood history even among lawyers. On July 7, 2007, the Court of Appeals decided Axxson Timber Company v. Wilson. This case involved whether a worker who suffered an on the job injury can maintain a workers’ compensation claim against a statutory employer under O.C.G.A. §34-9-8(d). In order for an injured worker to maintain a case under Georgia Workers’ Compensation Law in this instance, the law requires that the injury occur at a place that the statutory employer had undertaken to execute work and which was otherwise under the control and management of the statutory employer.

The problem with this case is the claimant was injured at a Mill in Florida. Accordingly, the court found that because the injury did not occur on Axxson Timber Company property or property that Axxson Timber Company controlled and the injured employee could not pursue a workers’ compensation case. In quoting the Court of Appeals, “…imposing a workers’ compensation liability on a shipper for an injury that occurred at a location over which it had no control would render the shipper and insurer, which was not the intent of the Georgia Workers’ Compensation Act”.

This case seems to limit the rights of injured workers to bring cases against statutory employers. Although the results in this case were defendant on its particular facts, a precedent has been set that limits the rights of injured workers. This is especially concerning in the context of cases involving truck drivers. If a truck driver is working for a shipper that does not have workers’ compensation insurance and suffers an injury at the point of destination, they may be unable to maintain a workers’ compensation claim against a statutory employer if such statutory did not own or manage the location where the injury took place. This case is even more troubling as White Trucking Company, the direct employer, did not have workers’ compensation insurance. Please remember if you are a truck driver or have a friend or family member that is a truck driver and has been injured in a workers’ compensation accident, please consult and attorney regarding your potential case. In many cases, even though the direct employer may not have workers’ compensation insurance coverage because they are a small company, there are other statutory employers against which you can file a workers’ compensation claim.

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On July 9, 2007, the Georgia Court of Appeals handed down its decision in Patterson v. Bristol Timber Company. In this case, the plaintiff filed a person injury suite against Bristol Timber Company. The injured employee, working for a Georgia trucking company, was contracted to deliver wood chips to Bristol Timber Company by his employer. A work accident occurred when the injured worker fell off a ladder onto a front loader. Although this case involved other legal issues aside from the workers’ compensation case, the primary basis for dismissal was Exclusive Remedy Provision of Georgia Workers’ Compensation Law.

In this case, it is important to keep in mind the hierarchy of the companies involved. The Court reasoned that the personal injury lawsuit could not be maintained against Bristol due to it being a statutory employer under the Georgia Workers’ Compensation Act. This is because Bristol hired Brownlow to haul the wood chips from their loading docks to inland. Patterson was injured on Bristol’s premises in the course of his work for Bownlow while performing obligations the contract. Therefore, the Court found these facts fall squarely into O.C.G.A §34-9-8(a) & (d).

This case involves the issue of statutory employment. Most states have, through their respective workers’ compensation statutes, established rules protecting workers of sub-contractors who do not have workers’ compensation insurance. Under the laws as discussed in this case, an employee may bring a workers’ compensation claim against statutory employees. Of course, there is a flip side to this coin being that the statutory employers, in exchange for being responsible under Georgia’s Workers’ Compensation law, enjoy tort immunity pursuant to Georgia’s Exclusive Remedy doctrine. Many injured workers in Georgia do not know that, in most instances, they can only file worker’s compensation claim their employer if they are hurt on the job. Thus, personal injury claims and civil suits for negligence against an injured worker's employer are generally frowned upon. These claims may come in all sorts of shapes and fashions including slip and fall cases, claims against co-workers in the operation of machinery, failure to maintain machinery and vehicles, car accidents, truck accidents, and other various dangers that exists in the work place. These legal issues can be complex. In addition, many of the cases that have emerged in this area are gray at best. If you or a loved one has a situation and would like an opinion as to whether or not you can bring a personal injury lawsuit against an employer, in addition to a workers’ compensation claim, please do not hesitate to contact my office or another law firm that handles workers’ compensation and personal injury cases.

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Posted In: Georga Personal Injury Case Update , Georgia Workers' Compensation Case Update

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On July 30, 2007, the Georgia Court of Appeals decided the case of Bibb County Board of Education v. Bembry. This case involved a workers’ compensation appeal of a school teacher in Bibb County Georgia. The Court of Appeals judges discussed the claimant’s medical treatment with several doctors. In this case, the employer and insurance company alleged that the claimant had a significant pre-existing issues. Specifically, the claimant had a herniated disc in her back prior to her fall at work. One of the doctors concluded that the client had returned to her “pre-injury base line” with “medical certainty."

The issue of pre-existing medical conditions, especially those involving the back, are prevalent in workers’ compensation cases. While Georgia Workers’ Compensation law allows claimants to recover even with a pre-existing injury, the employer is only obligated to return the injured worker to their pre-injury base line. This case emphases several important points. First, the Any Evidence Standard is alive and well in Georgia. What this means is that the State Board of Workers’ Compensation issues a decision based upon the facts of the case, their particular findings should be conclusive and binding if there is any evidence to substantiate there findings. Of course, this generally applies to the facts and not legal issues that can arise in the case. Second, the Court of Appeals rather clearly spelled out its position regarding pre-existing issues by using terms such as “pre-injury base line” “medical certainty”. Third and perhaps more importantly, the Court of Appeals noted that Georgia State Board of Workers’ Compensation is entitled to credit the injured worker's Authorized Treating Physician opinion over the opinion of a claimant’s personal physician in resolving conflicting expert medical evidence. This is important because, presumably, the same analysis might apply to allowing an Administrative Law judge to believe the opinion of an authorized treating physician over the opinions of physicians to whom the claimants is sent by the employer/insurer.

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On July 5, 2007, the Georgia Court of Appeals decided the case of Champion v. Pilgrim's Pride Corp. of Delaware, Inc. In this case, a worker was injured after being hit by a truck in the receiving area of the poultry plant. She later died from her injuries. A civil suit was brought against her employer. One of the issues in the case was whether Georgia's workers' compensation law applies. The law says that an injured worker has a valid work injury claim if the injury occurs when the worker ingresses and egresses from the place of work. In this case, the Georgia Court of Appeals decided that it is a jury question as to whether or not she could maintain a wrongful case against her employer. Specifically, the issue was whether she was acting within the scope of her employment when she was hit. The Georgia Court of Appeals was swayed by the fact that the deceased was hit at work 78 minutes before she started her shift.

This case adds an interested case to the large number of work injury cases dealing with whether an injury arises out of employment. Usually, the injured employee is seeking workers compensation benefits. In this case, the person who died in this horrible workplace accident brought a personal injury lawsuit so it was essential to get around the Exclusive Remedy Provision (O.C.G.A. 34-9-11).

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Posted In: Georga Personal Injury Case Update , Georgia Workers' Compensation Case Update

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On June 26, 2007, the Georgia Court of Appeals issued its decision in Canal Insurance Company v. Pro Search. The case dealt with a dispute between a Workers’ Compensation Insurer and an Employer, centering on the nonpayment of deductibles by the Employer to the Insurer. In this case, the Employer, as part of its Workers’ Compensation insurance policy, opted to have a deductible in each claim in the amount of $2,500.00. When the insurance company sent a bill for $42,755.54, the Employer refused to pay the bill and the Insurer filed a lawsuit. The Court held that the claim was not bared by the statues of limitations which started to run when the Insurer demanded payment for the deductibles from the Employer.

Continue reading "Georgia Case Law Update - Canal Ins. Co. v. ProSearch" »

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On June 20, 2007 the Georgia Court of Appeals issued a decision in the case of Renu Thrift Store Inc. VS. Figueroa. The case involved three primary issues. The first issue involves a credit for overpayment of benefits that the employer sought pursuant to O.C.G.A. §34-9-245. The employer in this case sought to take a credit against TTD payments for several years. It is interesting to note in this case that the employer admitted that they over calculated the claimants TTD rate. In this regard, the Court of Appeals held that the employer was not entitled to a credit for over payments. Any claim for reimbursement by an employer needs to be brought within two years of the date of overpayment according to O.C.G.A. §34-9-245.

The second issue decided in this case was whether or not the fifteen percent penalty found in O.C.G.A. §34-9-221(b) is appropriate when an employer insure sends income benefit checks bi-weekly rather than a weekly basis. The court in this case held that the penalty was appropriate. As I have discussed in other articles, a constant concern representing injured claimants throughout Georgia in workers’ compensation cases is that they do not receive their checks in a timely fashion. O.C.G.A. §34-9-221(b) provides that weekly benefits shall be due and payable in weekly installments.

In this case, the Court of Appeals sided with the claimant and the State Board of Workers’ Compensation was authorized to access the fifteen percent penalty for those weeks when the employer refused to pay the employees benefits on a weekly basis. It is important to note that the employer in this case argued that, included in each bi-weekly payment, was a payment for the current week as well as a payment for one week ahead. The Court of Appeals quickly dismissed this logic and emphasized that employer insurers are required to send out checks in a weekly fashion.

Continue reading "Georgia Workers' Compensation Case Law Update - Renu Thrift Store v. Figueroa" »

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On March 26, 2007, the Georgia Supreme Court decided Ray Bell Construction v. King.  The issue in the case is whether Howard King had a valid case under Georgia workers' compensation law under the continuous employment / traveling employee doctrine.  Howard King was killed in a motor vehicle collision while driving a company vehicle from a storage shed back to his jobsite.  It was undisputed that he went to the self storage shed for a personal reason - - he was delivering family furniture to the storage shed. 

The Supreme Court upheld the Court of Appeals' decision.  The legal test in the case, according to the Court, was whether the employee "turns back" and resumes the duties of the employer after the personal mission.

Continue reading "Case Law Update - Ray Bell Construction v. King" »

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On March 19, 2007, the Georgia Court of Appeals decided this case.  The underlying facts of this case are tragic.  Ms. Johnson was employed as a night security guard.  She was murdered one night while assigned to guard a vacant and historically dangerous property.  Her family brought an action against her employer Burns Security for wrongful death.

The Court of Appeals held that Ms. Johnson's family's rights were limited by Georgia Workers' Compensation Law.  Specifically, the Exclusive Remedy Provision contained at O.C.G.A. 34-9-11 generally prohibits injured workers from bringing civil lawsuits against their employers.  In this case, the Court held that Ms. Johnson's family was limited to workers' compensation benefits and could not bring a lawsuit against her employer. 

It is important to note that there are several exceptions to this general rule.  An attorney should be consulted when this situation arises as soon as possible. 

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    On February 22, 2007, the Court of Appeals decided yet another workers' compensation case. This case involved an oversight by a judge wherein an Order was not sent to the parties.  The employer, who wanted to appeal the case, was unable to do so because they never received a copy of the Order.  The Court of Appeals ordered the Superior Court to re-enter its judgment so the Employer and Insurer will have 30 days to file an appeal.
    This case gave a break to the Employer.  While it can be viewed as beneficial to the Employer, the tables could have easily been turned on the injured worker.  The importance of this case should not be overlooked as parties now have a case to rely upon if they fail to read and follow the law closely. O.C.G.A. 34-9-105 states that if the Superior Court does not issue an Order within a specified time, the Award from Georgia's State Board of Workers' Compensation will be affirmed. This is precisely what happened in this case.  Nevertheless, once the Superior Court issues its Order, it admittedly failed to send it to the Employer and Insurer. This was the basis for Wal-Mart's successful appeal.

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    Late February was a busy time for workers' compensation cases from the Georgia Court of Appeals.  On February 22, 2007, the Court issued its opinion in Caremore, Inc./Wooddale Nursing Home v. Hollis. This case dealt with what I think is an important issue: O.C.G.A. 34-9-205.  I will write separately about the pre-approval problems in workers' compensation cases.  This case addressed the employer and insurer's willfulness in failing to comply with the form filing rules under Georgia workers' compensation law.  It held that the circumstances warranted a finding of a violation of Board Rule 61.
    Another central issue involved the injured worker's meals.  The Court held that the meals provided by the employer and insurer increased the average weekly wage, thus entitling the injured worker to additional weekly benefits. 
    As previously discussed, the issue of pre-authorization creates many problems in workers' compensation cases.  My office very often deals with medical providers who, understandably, do not want to perform services without pre-authorization from the workers' compensation insurance company.  The problem is that currently pre-authorization is not required for medical services provided by the Authorized Treating Physician or another physician to whom the ATP refers an injured worker.  The Form WC-205 is there the rubber meets the road to address this issue.  If a Form WC-205 is sent by a medical provider to an employer and insurer, a response is required or the treatment stands pre-approved.  In my practice, I make it a point to help medical providers understand the law.  Often, we send WC-205's partially completed to the medical provider(s) so all they will have to complete is the pertinent medical information, sign, and send it to the insurer.  When insurers drag their feet on getting medical treatment approved, this can be helpful

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    On February 19, 2007, the Court of Appeals issued its decision in this case.  This case dealt with an insurer's failure to timely file a form WC-2 before suspending benefits.  Under Georgia Workers' Compensation law, an insurance company is required to file a Form WC-2 before suspending an injured workers' weekly income benefits.  There is an additional added protection built into the law which requires 10 days' notice to those suffering an on the job work injury.  In this case, the  WC-2 was filed with the Georgia State Board of Workers' Compensation less than 10 days prior to stopping weekly benefits.  The Claimant argued that the WC-2 was ineffective and was eventually awarded an additional 17 month's of income benefits.
       The Court of Appeals thought otherwise and held that the WC-2 was not invalidated altogether.  The Claimant got an additional 4 days of benefits, not 17 months of additional workers' compensation benefits.  Interestingly, the Court of Appeals also remanded the case for consideration of attorneys' fees.  It seems as if the Court of Appeals thought that this would be a good case for assessed attorneys' fees even though the Administrative Law Judge did not think they were appropriate.
    This case helps to solidify the requirement that an employer and insurance company must file a WC-2 prior to suspending income benefits.  There have been a long line of cases supporting this notion.  I recommend that attorneys dealing with this issue be sure to check the details about the WC-2, including whether and when it was filed with the Georgia State Board of Workers' Compensation. 

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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.

Continue reading "Case Law Update - TIG Insurance Co. v. Dust-Away, Inc. et al." »

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The Georgia Court of Appeals decided Reid v. Georgia Building Authority, et. al on February 2, 2007.  The facts in this case are familiar to any attorney who handles workers' compensation cases.  Ms. Reid was suffered an on-the-job injury to her hand.  The injury was serious enough that Ms. Reid, who was sixty-six years old when she was injured, would not be able to do her housekeeping work for the rest of her life.  In fact, she had been a housekeeper for her entire life.  According to her doctor, she was permanently and totally disabled from performing her job as a housekeeper.  Ms. Reid sought to have her claim deemed catastrophic.  The Administrative Law Judge for the Georgia State Board of Workers' Compensation ruled in her favor as did the Appellate Division / Full Board.  When the employer appealed to Superior Court, the decision was overturned.  The Court of Appeals upheld the Superior Court's decision and found there was not enough evidence on the record to show this was a catastrophic case.   

There are several lessons to be learned in this case.  The Court of Appeals starts the opinion by pointing-out that Ms. Reid's attorney did not properly make citations to the record in violation of court rules.  Later in the opinion, the Court of Appeals points out that Ms. Reid could have secured testimony from a vocational rehabilitation expert which was not done.  In this case, the Court of Appeals needed more.

This is a bad case for employees.  While Ms. Reid did not have a vocational expert, she had strong medical evidence from her doctor and through testing by a physical therapist which outlined her limitations.  The Administrative Law Judge thought this was enough as did the Appellate Division of the State Board.

This case also illustrates another important point.  For a claim to be catastrophic, the injured worker must show that there are no jobs available for him or her in "substantial numbers in the national economy."  Most often, this can be shown when an injured worker is awarded Social Security Disability benefits.  Admittedly, this standard is open to a lot of interpretation.  It is also a heavy  and high burden to be taken seriously.  As I counsel my clients, a claim is not catastrophic just because you cannot do your job or your line of work again, even for the rest of your life . Much more needs to be proven and the best place to start is with a well-respected vocational rehabilitation expert.

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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. 

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As part of my Georgia Workers' Compensation Law Blog, I will provide case law updates on all new workers' compensation cases from the Georgia Court of Appeals & Georgia Supreme Court.  As of today (January 18, 2007), there have been no new cases in 2007.  As I have previously stated, my goal is two-fold.  First, I want to provide information for injured workers, their families, and the general public about Georgia Workers' Compensation.  Second, I want to provide valuable information to attorneys, especially non-workers' compensation practitioners, about Georgia workers' compensation law.  This post is more directed toward the attorneys who read my blog.

In this posting, I will highlight a recent case which I think is quirky. I also think the importance of this case will become more apparent as time passes.  My gut feeling is that this case will have negative implications for the injured worker in years to come. 

The Footstar case can be found here:  Footstar, Inc. v. Liberty Mutual Ins. Co.

Statutes of Limitation in Georigia workers' compensation cases are admittedly tricky.  Although this case grew out of fight between two insurance companies, it affects injured workers adversely.  Generally, there is a two year Statute of Limitations in a change of condition case.  In its most basic form, a change of condition case means what it says: an injured worker's condition changes for the better or worse.  In many cases, an injured worker gets better, the weekly benefits stop, and later gets worse and again seeks weekly benefits.  In these cases, the injured worker generally has a two-year Statute of Limitations in which to file a claim for additional weekly benefits. 

The question that naturally arises is as follows - - what happens if the injured worker never receives weekly income benefit checks?  What is the Statute of Limitations in these cases?  Does it matter if a judge issues an award in favor of the Claimant allowing medical care but awards no income benefits?  In Georgia, as in many states, there are "Medical Only" cases. These are cases in which the only benefit supplied by the insurance company is medical care. 

Perhaps the biggest problem this case presents is that it leaves more questions unanswered than answered.  In my opinion, it also opened a huge can of worms for insurers to hang their hats as the rights of injured workers are further depleted.

As an interesting side-note, I have a case some years back before the same Administrative Law Judge.  In this case, his ruling was similar to the Footstar case in that he denied my client's application for income benefits, but issued an award in favor of my client for medical care.  My case was settled after I filed an appeal, but I often wondered how it might have turned-out if it were not settled.

Posted by Jack E. Clay | Permalink | Email This Post

Posted In: Georgia Workers' Compensation Case Update

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