Georgia Law Blog

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.

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

Posted In: Georgia Workers' Compensation Case Update

Bookmark:

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.

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

Posted In: Georgia Workers' Compensation Case Update

Bookmark:

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.

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

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

Bookmark:

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.

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

Posted In: Georgia Workers' Compensation Case Update

Bookmark:

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.

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

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

Bookmark:

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.

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

Posted In: Georgia Workers' Compensation Case Update , Workers' Compensation Information

Bookmark:

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).

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

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

Bookmark:

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" »

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

Posted In: Georgia Workers' Compensation Case Update

Bookmark:

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" »

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

Posted In: Georgia Workers' Compensation Case Update

Bookmark:

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" »

Posted by Jack E. Clay | Permalink | Email This Post | Comments (0)

Posted In: Georgia Workers' Compensation Case Update

Bookmark:

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. 

Posted by Jack E. Clay | Permalink | Email This Post | Comments (1)

Posted In: Georgia Workers' Compensation Case Update

Bookmark:

    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.

Posted by Jack E. Clay | Permalink | Email This Post | Comments (0)

Posted In: Georgia Workers' Compensation Case Update

Bookmark:

    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

Posted by Jack E. Clay | Permalink | Email This Post | Comments (0)

Posted In: Georgia Workers' Compensation Case Update

Bookmark: