McDUFFIE v. OCMULGEE EMC
Court of Appeals Case No.: A16A0093
June 15, 2016
Almost a year ago, the Court of Appeals issued its decision in McDuffie v. Ocmulgee EMC, Court of Appeals Case No.: A16A0093, completely ignoring the plain language of O.C.G.A. §34-9-1(4). The Supreme Court accepted the Application for Certiorari and the case was argued on June 19, 2017.
The facts show that the claimant was hired by Ocmulgee EMC in 2007. At the time of hiring, the claimant failed to disclose a prior knee injury and his permanent work restrictions as a result of that prior injury. In fact, on the application seeking a job at Ocmulgee EMC, the claimant failed to even mention the employer for which he was working at the time of his prior injury. The claimant was out of work for four years as a result of the prior knee injury and underwent three surgeries for that prior injury.
In 2009, while working for Ocmulgee EMC, the claimant reinjured his right knee. Ocmulgee EMC accepted the claim as compensable. The employer/insurer learned of the claimant’s dishonesty regarding his prior injury and restrictions and fired the claimant, suspending his temporary total disability benefits. Although not discussed by the Court of Appeals, it is believed that no Rycroft defense was raised since, as a part of the hiring process, the claimant was sent for a pre-employment physical during which his prior knee surgery was disclosed. Accordingly, the employer/insurer could have investigated and learned of the permanent restrictions at the time of hire so the Rycroft defense was not available as newly discovered evidence pursuant to O.C.G.A. §34-9-221(h).
When the claimant’s treating physician took him out of work entirely for an additional right knee surgery, temporary total disability benefits were reinstated voluntarily in March 2011. After the surgery, in July 2011, the claimant’s physician stated that the claimant had returned to his pre-2009 injury baseline and temporary total disability benefits, again, were suspended.
After a hearing in which the claimant sought reinstatement of temporary total benefits, the Administrative Law Judge found that, after the 2011 surgery, the claimant had improved to the point that he had no work restrictions beyond the restrictions he had (but failed to disclose) when hired by Ocmulgee EMC. Accordingly, the Administrative Law Judge found that the employer/insurer had carried their burden of proving that the claimant’s condition had changed for the better and refused to order reinstatement of temporary total disability benefits. The State Board of Workers’ Compensation and Superior Court confirmed the Administrative Law Judge’s decision.
The Court of Appeals accepted the claimant’s application for discretionary appeal. In its decision, the Court of Appeals acknowledged that, while there was conflicting evidence, there was some evidence to support the factual findings of the Administrative Law Judge and State Board of Workers’ Compensation. As such, the Court of Appeals adopted the findings that the claimant had experienced a physical change for the better and that there were no longer any restrictions on the claimant’s ability to work attributable to the 2009 accident while working for Ocmulgee EMC.
Nevertheless, the Court of Appeals reversed the lower tribunal’s decisions holding that the employer/insurer were required to show not only that the claimant had recovered from the aggravation and returned to his pre-injury baseline, but also that suitable work was available and had been offered to the claimant. The Court of Appeals ordered the case remanded to the State Board of Workers’ Compensation for the Administrative Law Judge to make a determination regarding whether suitable work was available and offered.
The employer/insurer, supported by the Georgia Workers’ Compensation Association, Georgia Association of Manufacturers, Georgia Mining Associates, Georgia Agri-Business Council, Inc., Associated General Contractors of Georgia and Georgia Poultry Foundation, filed an application for writ of certiorari which was granted on February 27, 2017. In granting the writ of certiorari, the Supreme Court asked that the parties pay particular attention to the following issue:
Must an employer show the availability of suitable employment to justify suspension of workers’ compensation benefits after already establishing that an employee’s work-related aggravation to a pre-existing condition has ceased to be the cause of the employee’s disability?
In their brief to the Supreme Court in support of the appeal, the employer/insurer noted that the cases upon which the Court of Appeals relied in holding that the Employer/Insurer had the burden not only of showing that the claimant had recovered from the work related aggravation but also that suitable employment must be available were inapposite. In each of the cases cited by the claimant and the Court of Appeals, the evidence had not shown that the injured worker had recovered from the work injury but, rather, that the injured worker continued to suffer from restrictions on his ability to work which were the result of the work related accident. Here, as found by the Administrative Law Judge, the State Board of Workers’ Compensation, the Superior Court, and the Court of Appeals, the claimant had no restrictions which were attributable to the work injury he sustained in 2009 while working for Ocmulgee EMC. The claimant no longer suffered any disability due to the 2009 aggravation of his pre-existing condition.
Despite the excellent and passionate efforts of Blake Smith on behalf of the claimant, the law is clear: O.C.G.A. §34-9-1(4) states that an aggravation of a pre-existing condition meets the definition of injury by accident arising out of and in the course of employment only for so long as the aggravation continues to cause the disability. Here, the trier of fact found that, when benefits were suspended in July 2011, the aggravation no longer was causing any of the claimant’s ongoing disability. In such circumstances, no further benefits are due.
It is submitted that the employer/insurer could have controverted the entire claim at that point and not only suspended temporary total but refused to provide further medical treatment since there was no longer any compensable injury by accident. The Court of Appeals noted that the employer/insurer had not challenged a separate holding of the Administrative Law Judge that Ocmulgee EMC remained responsible for providing and paying for reasonable and necessary medical treatment. However, it is submitted that if the claimant has recovered completely from the work injury then, under the plain language of O.C.G.A. §34-9-1(4), no further benefits of any kind should be payable. Moreover, it is suggested, that referring to the situation when an aggravation completely resolves as a “change in condition” may confuse the issue. Certainly, as a factual matter the condition has changed. However, “change in condition” is a term of art in workers’ compensation cases which historically always has meant that a compensable injury still exists but that the claimant’s condition may have changed to the point that he either has renewed entitlement to disability benefits or is no longer entitled to disability benefits. Historically, in change in condition cases, medical benefits continue to be payable and the accident/injury continues to meet the definition of injury by accident arising out and in the course of employment. That is not the situation in the instant case.
The oral argument before the Supreme Court presided over by Chief Judge Harris Hines and in which Judge Cynthia Adams of the Douglas County Superior Court substituted for Justice Peterson was heard on Monday, June 19, 2017. Fred Hubbs presented the argument on behalf of the employer/insurer, pointing out that after it was found that the claimant had recovered from the aggravation and no longer suffered any disability due to the aggravation, there is no longer a nexus between the accident while working for Ocmulgee EMC and any continuing unemployment. The claimant has returned to his baseline condition and nothing more need be proved.
On behalf of the claimant, Blake Smith attempted to suggest that the case at bar was not an aggravation case but a “new injury” case. Justice Nahmias pointed out that the State Board of Workers’ Compensation and all but one judge on the Court of Appeals agreed that the claimant was back to baseline and pointed out that the petition for certiorari was denied on any factual issues but granted only on legal issues. Nevertheless, the attorney for the claimant/appellee continued to refer to the permanent restrictions placed on the claimant’s ability to work before he was hired by Ocmulgee EMC as “paper restrictions”. Mr. Smith seemed to be arguing that the Supreme Court should revisit the facts and find that the claimant had not recovered from the aggravation. Specifically, Mr. Smith asked for the Justices to engage in a de novo review. Justice Nahmias asked the parties to assume that the Supreme Court is not going to revisit the facts. Even setting aside any bias in favor of the employer/insurer, once the facts are determined to show that the claimant has recovered from any aggravation of a pre-existing condition so that he no longer suffers from any disability as a result of the aggravation, the law is clear that the claimant is entitled to no further benefits whatsoever. Workers’ compensation is a creature of statute and it is hoped that the Supreme Court will correct the Court of Appeals’ failure to abide by O.C.G.A. §34-9-1(4).
The Avrett Plumbing Co., et al. v. Castillo
Court of Appeals of Georgia, A16A1808, Not officially reported
Decided: March 10, 2017
Did the Superior Court err in refusing to accept the findings of the Appellate Division as to whether the doctrine of continuous employment applied to support an award of workers’ compensation benefits to the claimant?
The claimant, Marlon Castillo, tripped and broke his ankle on a personal errand on Sunday, March 9, 2014. The claimant was off work for his employer, the Appellant, Avrett Plumbing Co. (“Avrett”), and was not on call when he was injured. The claimant requested a hearing seeking workers’ compensation benefits under the theory that he was a continuous employee at the time of his injury. The ALJ granted the claimant’s request for benefits. Employer/Insurer appealed to the Appellate Division which vacated the ALJ’s award and denied the claim. The Appellate Division reasoned that the claimant was not a continuous employee because he was not away from his residence for a work-related purpose when he was injured. The claimant appealed to the Superior Court of Richmond County, which reinstated the ALJ’s award of benefits. The Employer/Insurer’s Application for Discretionary Appeal was granted and accepted. The Court of Appeals agreed reversed the Superior Court’s findings for the following reasons.
Employer is a plumbing company which hired the claimant to work Monday through Friday, from 8:00 a.m. to 5:00 p.m., with occasional overtime on weekdays only. Claimant was paid only for the hours during which he actually worked. Because the claimant did not live in Augusta, Employer provided him with a hotel room in Augusta at which he could stay during the work week. Although the claimant did not work on weekends, Employer “gratuitously” permitted him to stay at the hotel over the weekend because the room otherwise would sit unused. The claimant stayed in Augusta over the weekends because it was too costly to leave and his car was not capable of making the trips home. It was on weekend that claimant was injured while on a purely personal mission.
The general rule that an injury sustained while an employee is traveling to and from work is not compensable because it does not occur in the course and scope of employment. An exception exists under the “continuous employment doctrine.” Mayor &Alderman of Savannah v. Stevens, 278 Ga. 166 (598 SE2d 456) (2004) Pursuant to Ray Bell Const. Co. v. King, 281 Ga. 853 (642 SE2d 841) (2007), the Court of Appeals stated:
Under Georgia’s doctrine of continuous employment, more commonly known nationally as ‘the traveling employee’ doctrine, there is broader workers’ compensation coverage afforded [to] an employee who is required by his employment to lodge and work within an area geographically limited by the necessity of being available for work on the employer’s job site. Such an employee is, in effect, in continuous employment, day and night, for the purposes of the Workers’ Compensation Act, and activities performed in a reasonable and prudent manner for the health and comfort of the employee, including recreational activities, arise out of and are in the course of the employment.
The Court explained that, following a hearing, the ALJ found that the claimant was a continuous employee, even though he was not on call when he was injured, “because he was required by his employment to live away from home while working.” As such, the ALJ awarded workers’ compensation benefits. The Appellate Division disagreed with the ALJ’s finding, and held that the claimant was not a continuous employee, based on the reasoning that the claimant was not an “on-call” employee, but remained in Augusta over the weekends for purely personal reasons and that he was not “serving any requirement of employment” or under Employer’s control at the time of his injury. The Court of Appeals noted that the Appellate Division “properly exercised its authority to substitute its own factual findings in determining that the claimant was not present in Augusta for an employment-related reason.”
The Superior Court then reversed the Appellate Division based on the “contradictory factual finding” that the claimant was in Augusta at the time of his injury for work-related reasons. Specifically, the Superior Court held that “the facts leading up to the claimant’s injury supported the finding that he was a continuous employee” because he was present in Augusta on Sunday afternoon (the date of his injury) in order to prepare for work on Monday. Employer/Insurer appealed this decision asserting that the Superior Court did not give proper deference to the Appellate Division’s factual findings. The Court of Appeals agreed.
Specifically, the Court explained that the Superior Court and Court of Appeals must affirm factual findings of the Appellate Division that are supported by “any evidence in the administrative record.” Strickland v. Crossmark, Inc, 298 Ga. App. 568 (680 SE2d 606) (2009). Because there was evidence in the record to support the Appellate Division’s finding that the claimant was in Augusta for personal reasons unrelated to work, the Superior Court erred when it made the “contradictory factual finding” that the claimant was in Augusta to prepare for work that week. The Superior Court is required to accept the factual findings of the Appellate Division if there is any evidence to support them. Because there was evidence in the record to support the Appellate Division’s findings, the Superior Court lacked the authority to substitute its own factual findings for those of the Appellate Division.
Because the Appellate Division’s factual findings that the claimant was not mandated to be in Augusta on Sundays, when he was injured, for any employment related reason and that he was only there at the time of his injury because of personal reasons were supported by some evidence, the Court of Appeals reversed the Superior Court and reinstated the Appellate Division’s holding that the claimant was not a continuous employee and his injury did not arise in the course and scope of his employment.
Wills d/b/a Wills Construction v. Clay County et al.
Court of Appeals of Georgia, A16A1328, Not officially reported
Decided: October 26, 2016
Did the Superior Court err in affirming the Appellate Division’s decision that the claimant was entitled to workers’ compensation benefits because the Appellant was a statutory employer under the Act?
Did the Superior Court err in affirming the Appellate Division’s decision that Clay County was not a statutory employer as they were only a mere owner under the Act?
Bobby Wills appealed an Order from the Superior Court affirming the award of the Georgia Board of Workers’ Compensation, which granted the claimant’s request for benefits due to an injury he suffered while working for Wills on the grounds that Wills was a statutory employer. By way of background, Wills had entered into a contract with Clay County to renovate a gym and then hired the claimant and two other men to work on that project. While working on the Clay County job, the claimant slipped off of the roof and injured his leg. The claimant then filed a claim against Wills and Clay County, as statutory employer. The Board granted the claim against Wills and denied the claim against Clay County. Wills appealed the finding that he was a statutory employer because he argued that he did not have three employees regularly in service, and he appealed the finding that Clay County was not a statutory employer. The Court of Appeals disagreed with Wills on both charges, and affirmed the Board’s decision for the following reasons.
Wills argued that he was not a statutory employer under the Act because he did not have three employees regularly in service as provided by O.C.G.A. 34-9-2(a)(2). The Court reasoned that the phrase “regularly in service” has come to mean that a person’s employment has “more or less permanently adapted to the business of the employer at a particular time, and continues through a reasonably definite period of time and possesses the characteristics as applied to the business of being unvarying in practice.” The Court further explained that the word “regularly” refers to whether or not the employment is an “established mode or plan of in the operation of business,” rather than to the constancy of the work. Jones v. Cochran, 46 Ga. App 360 (167 SE 751) (1993) As such, the Court explained that the person’s work may be “intermittent and yet regular.” The Court noted that Wills had previously hired the claimant to work on other projects over a period of several years, paid him in cash, and they had an unwritten agreement that if anyone was injured on the job, that person would pay for his own medical bills. The Court went on to state that the claimant testified during the hearing that he and Wills had worked with an additional person two to three times a year and Wills testified that he had hired three to four other employees for two other jobs around the same time work was being done on the Clay County job. The Court cited Jones for the proposition that an employer is subject to the Act “if the volume of the business increases such that an employer needs to hire more people, and that employees were likely to be retained for a reasonably definite amount of time, during which the work they were employed for was unvarying and steadily pursued.” The Court reasoned that Wills was in the practice of hiring additional employees when a construction project required it, and, as a result, Court affirmed the Appellate Division’s finding that Wills employed three employees regularly under Jones. As such, the Court further affirmed that Wills was subject to the Act.
The Court also evaluated Wills’ contention that Clay County was not a statutory employer. The Court cited O.C.G.A. 34-9-8 for the list of entities that may be considered a statutory employer, and which include a principal, intermediate, and sub-contractor, and cited the oft-quoted language that owners or entities merely in control of a premises would not be subject to the Act as statutory employers, unless they also serve as a contractor “for yet another entity and hires another contractor to perform the work on the premises.” Yoho v. Ringier of America, Inc., 263 Ga. 338 (434 SE2d 57) (1993). The Court reasoned that Clay County owned the gymnasium where the claimant was injured, but had no control over Wills’ construction project there or the management of his employees and that only some of the details of the project were discussed in the contract between Wills and the County, but thereafter, the County stepped back and Wills took over. As such, the Court found that Clay County had no control over Wills’ employees or the project. For the foregoing reasons, the Court held that the County was not a statutory employer.
In sum, the Court affirmed the Appellate Division’s findings that Wills was a statutory employer because he increased the number of employees who worked for him as business warranted, and, thus, had three employees regularly in service. And the Court held that Clay County was not a statutory employer because they were a mere owner and uninvolved in the operations of the project on which the claimant was injured.
Breman Bowden Investment Company v. Cox
Court of Appeals of the State of Georgia, A16D0383
Decided June 15, 2016
Does the Court of Appeals have jurisdiction when a decision of the Appellate Division of the State Board of Workers’ Compensation is affirmed by the Superior Court by operation of law and the appellant does not file an appeal of that decision to the Court of Appeals within 30 days? The Court of Appeals concluded that they did not have jurisdiction.
The Appellate Division of the State Board of Workers’ Compensation affirmed the award of benefits to claimant. Employer filed a timely notice of appeal to the Superior Court, but no hearing was held before the Superior Court and the decision of the Board was affirmed by operation of law.
The Court of Appeals advised that O.C.G.A 34-9-105 (b) provides that “if the court does not the case within 60 days of the date of docketing in the superior court, the decision of the board shall be considered affirmed by operation of law…” It is the appellant’s burden to ensure that either a hearing is scheduled within the 60 day period. See Coronet Carpets v. Reynolds, 199 Ga. App. 383, 384, 405 S.E. 2d 103 (1991). In this case, the appeal was docketed on January 26, 2016, and the 60th day fell on a weekend. Accordingly the decision was affirmed by operation of law on Monday, March 28, 2016.
In order for the Court of Appeals to have jurisdiction, must be a timely filed application for discretionary appeal. See Boyle v. State, 190 Ga. App. 734, 380 S.E. 2d 57 (1989). An application is timely if it is filed within 30 days of the entry of the Order the applicant seeks to appeal. See O.C.G.A. § 5-6-35 (d); Hill v. State, 204 Ga. App. 582, 420 S.E. 2d 393 (1992). In this case, the employer was required to file its appeal within 30 days of March 28, 2016—the date that the Board’s decision was affirmed by operation of law. As the employer’s application was not filed within that time period, the Court dismissed the application for discretionary appeal for lack of jurisdiction.
Roseburg Forest Products Company v. Barnes
Supreme Court of Georgia, S15G1808 and S15G1811
Decided June 6, 2016
Did the Court of Appeals err in holding that employee’s claims for workers’ compensation benefits were not barred by the applicable statute of limitations? The Supreme Court ruled that the Court of Appeals decision was in error.
Employee suffered amputation of his left leg in an August 13, 1993, workplace accident. The accident occurred while claimant was working for Georgia-Pacific. Claim was accepted as catastrophic and temporary total disability benefits were commenced. Claimant was fitted with a prosthetic leg and returned to work in a light duty capacity in January 1994, the claimant received no further temporary total or temporary partial benefits. Claimant continued to receive permanent partial disability benefits until May 1998.
In 2006, the plant in which the claimant worked was sold to Roseburg Forest Products Company (“Roseburg”). Claimant continued to work for Roseburg until he was laid off on September 11, 2009. On November 13, 2009, claimant consulted a physician regarding chronic knee pain and on December 6, 2011, claimant was fitted for a new prosthetic limb. This was paid for by CCMSI, the servicing agent for both Georgia-Pacific and Rosenburg.
On August 30, 2012, claimant filed a claim to resume temporary total disability benefits, asserting that August 13, 1993 (the date of the original workplace accident) as the date of injury.
On November 30, 2012, claimant filed a separate claim alleging a fictional new injury based upon the date that he was terminated from his employment—September 11, 2009.
The Administrative Law Judge denied both claims as being barred by the applicable statute of limitations. The Appellate Division affirmed this decision, as did the superior court. The Court of Appeals reversed.
Case Number S15G1808 – Claim to Resume TTD Benefits:
The Supreme Court stated that this case turned on the proper interpretation of O.C.G.A. § 34-9-104 (b). The Supreme Court advised that once an employer ends the payment of temporary total disability benefits to an employee, that the employee must file a claim for additional temporary total disability benefits within two years of the cessation date and a claimant’s failure to do so would result in the claim’s being time barred. See United Grocery Outlet v. Bennett, 292 Ga. App. 363, 365-365, S.E. 2d 27 (2008). Since Georgia-Pacific stopped paying temporary total disability benefits to the claimant on January 30, 1994, and as the claimant did not file a claim for the resumption of said benefits until some eighteen years later, that the claim was time barred. See Metro Atlanta Rapid Transit Auth. v.. Reid, 295 Ga. 863, 763 S.E. 2d 695 (2014).
Regardless of the fact that the claimant had the right, potentially, to receive temporary total disability lifetime benefits due to his catastrophic condition, the Court noted that O.C.G.A. § 34-9-104 (b) clearly stated that in order for the claimant to enforce that right, that he must make a claim for those benefits within two years of the last payment of temporary total disability benefits by the employer. This being the case, the Court of Appeals’ decision was reversed.
Case Number S15G1811 – Alleged Fictional New Injury:
The Supreme Court stated that the Court of Appeals erred in concluding that the one-year statute of limitations set forth in O.C.G.A. § 34-9-82 did not bar the claim related to the alleged fictional new injury that the claimant alleges to have suffered as a result of losing his job on September 11, 2009. Regardless of the substantive merits of the claimant’s fictional new injury claim, because no weekly benefits were paid to the claimant in connection with the alleged injury, he was required to file his claim within one year of the alleged injury or within one year of remedial treatment being provided. See O.C.G.A. § 34-9-82 (a).
While the Court concluded that the claimant did receive remedial treatment on November 13, 2009 for chronic knee pain related to his fictional new injury, this only extended the time period for the claimant to file his claim for one more year. See Poissonnier v. Better Business Burea, 180 Ga. App. 588, 589, 349 S.E. 2d 813 (1986). That being the case, as the claimant did not file his claim by November 13, 2010, his claim was time barred. The Court continued by stating that the fact that the claimant sought further remedial treatment in December 2011 did not did not revive his claim, which had already become time barred in November 2010. In light of these circumstances, the Court of Appeals’ decision with respect to this claim was reversed as well.
Fulton County Board of Education v. Thomas
Supreme Court of Georgia, S15G1205
Decided May 23, 2016
Did the Court of Appeals err in holding that employee’s average weekly wages should be calculated based on her “concurrent” employment as a bus driver for two employers “during substantially the whole of 13 weeks immediately preceding [her] injury,” when she did not work for both employers for substantially the whole of the 13-week period? The Supreme Court ruled that the Court of Appeals decision was not in error.
Employee was a school bus driver during the nine-month school year, but not during summer vacation. Employee’s salary was paid out over a twelve-month period. During summer vacation in 2011, employee supplemented her income by working for Quality Drive Away. While working for Quality Drive Away claimant was responsible for driving newly manufactured school buses from Atlanta to other parts of the country. The employment with Quality Drive Away ended on July 30, 2011, and employee returned to her duties with the County when school resumed shortly thereafter.
On October 19, 2011, employee was involved in a workplace accident while working for the County. She filed a claim for workers’ compensation benefits. The claim was accepted as compensable. The only contested issue related to the correct calculation of employee’s average weekly wage. The dispute centered on whether the employment with Quality Drive Away was “concurrent similar employment” such that the wages from Quality Drive Away should be included in the calculation of employee’s average weekly wage.
An administrative law judge concluded that the employment with Quality Drive Away constituted concurrent similar employment because it involved the same type and size of school bus and the same skill set as was required in the employee’s work with the County, and because she had been employed with Quality Drive Away for some period within the 13 weeks prior to sustaining the compensable injury. Accordingly, the administrative law judge determined that the calculation of the employee’s average weekly wage should include those wages earned while working for Quality Drive Away during the 13-week period immediately preceding her date of injury.
The Appellate Division reversed finding that, while the employment with Quality Drive Away was similar to the employment with the County, that it was not concurrent. The Appellate Division concluded that because the employment with Quality Drive Away ended prior the accident date that the employee was not employed concurrently with another employer at the time of her work injury. Thus, the Appellate Division ruled that the earnings from Quality Drive Away should not be included in calculating the employee’s average weekly wage. Employee appealed to the Superior Court, which affirmed the decision of the Appellate Division.
On discretionary appeal, the Court of Appeals reversed finding that the wages with Quality Drive Away must be included. The Court of Appeals held that the employee was working as a bus driver for substantially the whole of the 13 weeks immediately preceding her injury because she worked for Quality Drive Away and for the County during that whole time period. O.C.G.A. § 34-9-260 (1) explicitly contemplates work “for the same or another employer” and thus, because the employee worked those 13 weeks for the same or a different employer in the same type of employment during which she was injured, that her average weekly wage should have been computed based upon her “total amount of wages earned” for her work during the 13 weeks immediately preceding her injury. The Supreme Court granted certiorari to review the Court of Appeals’ decision.
The Supreme Court explained that the text of O.C.G.A. § 34-9-260 provides that the method of calculation prescribed in subsection (1) should be applied “[i]f the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury.” The Court further explained that within the context of O.C.G.A. § 34-9-260 that the term “employment” refers to “the particular calling or kind of employment in which [the] claimant was engaged at the time of [her] injury.” See Black v. American & Foreign Ins. Co., 123 Ga. App. 133, 134-135 (2), 179 S.E. 2d 679 (1970). The Court advised that the term “employment” rather than “employer” as the point of reference for the 13-week period was significant, as it illuminated the focus on the nature of the work performed, rather than on the identity of the employer.
The Court concluded that there was no dispute that the employee’s “employment” at the time that she was injured was that of a school bus driver. Additionally, the Court found that it was undeniable that the employee was working in that line of employment during “substantially the whole” of the 13-week period prior to the date of her accident. Therefore, the facts of this case clearly fell within the purview of O.C.G.A. § 34-9-260 (1).
The next issue that the Court addressed was determining whether the employee’s Quality Drive Away wages should be included in the calculation of her average weekly wage under the “concurrent similar employment” doctrine. The Court advised that there was no Georgia case law that had examined the meaning of “concurrent” in a context similar to that presented in this case. The Court found it notable that the language of O.C.G.A. § 34-9-260 (1) did not contain the word “concurrent.” Rather, the statute referred only to the claimant’s employment during the 13-week period preceding the injury. The Court stated that while the concurrent similar employment doctrine was created in addressing situations involving simultaneous employment at the time of injury, there was no basis in the text of the statute for requiring simultaneous employment as an absolute condition for the doctrines application. Instead, the Court found that applied in conjunction with subsection (1), the doctrine of concurrent similar employment required a “concurrence” of similar jobs within the 13-week period.
Accordingly, the Supreme Court held that where a claimant sustains an employment-related injury, after having worked in that line of employment for substantially the whole of the 13-week period immediately preceding the injury, the “total amount of waged earned” under O.C.G.A. § 34-9-260 (1) must include wages earned by the claimant for work performed for another employer in the same line of employment during the 13 weeks, regardless of the claimant’s employment status with that other employer at the time of injury. In other words, the Court explained that in applying the concurrent similar employment doctrine, they viewed “concurrent” as indicating that various jobs were all held within a 13-week period, even if they were not held at the same time or all held at the time of the injury. Accordingly, the Supreme Court concluded that the Court of Appeals correctly determined that the employment with Quality Drive Away qualified as concurrent similar employment, such that the calculation of her average weekly wage should include those wages earned from Quality Drive Away during the 13-week period immediately preceding her injury.
Premier Elevator Company, Inc. v. Edwards
Court of Appeals of Georgia, A16D0340
Decided May 12, 2016
Is an order of the Appellate Division denying the Employer/Insurer’s motion to dismiss a final decision which could be appealed to the Superior Court? The Court of Appeals determined that it was not.
Claimant filed a WC-14 hearing request seeking payment of workers’ compensation benefits associated with an October 2010 injury. Employer filed a motion to dismiss, alleging that the claim was barred by the statute of limitations. The administrative law judge denied the motion to dismiss, finding that the claimant’s claim represented a change in condition, and concluding that the statute of limitation was not applicable. The employer appealed this finding to the Appellate Division, which affirmed and adopted the findings of the administrative law judge. The employer then appealed to the Superior Court, which also affirmed the decision. The decision was appealed to the Court of Appeals.
The Court of Appeals concluded that only final workers’ compensation awards or decisions could be appealed to the superior court. See O.C.G.A. § 34-9-105 (b). The Court found that the Order of the Appellate Division denying the employer’s motion to dismiss was interlocutory, as claimant’s claim for benefits remained pending below. See Gilman Paper Co. v. Davis, 230 Ga. App. 364, 364, 496 S.E. 2d 469 (1998). The Court found that “[t]he Workers’ Compensation Act makes no provision for an appeal to the superior court from a decision by the [appellate division] other than one which grants or denies compensation.” Conwood Corp. v. Guinn, 190 Ga. App. 595, 595, 379 S.E. 2d 621 (1989). Thus, the Court found that because there was no appealable order, that the application presented nothing for review and the employer’s appeal was dismissed.
Bell v. Gilder Timber Company
Court of Appeals of Georgia, A16A0300
Decided May 4, 2016
Did the Superior Court err as a matter of law in failing to toll, or create an exception to the four year statute of limitation set forth in O.C.G.A. § 34-9-104 (b)? In a 3-0 decision, the Court of Appeals ruled that it was not error.
Claimant sustained a compensable neck injury in January 1992. Claimant underwent neck surgery in February 1992. The claimant received approximately four weeks of temporary total disability income benefits before returning to work. Claimant continued to work for the employer from 1992 through 2009, when he retired. During that period claimant continued to experience pain in his neck and underwent a second surgery.
The issue of whether the employer was liable for the second surgery was litigated and an Administrative Law Judge determined that the employer was responsible for paying for surgery, as it resulted from an injury that took place during the course of the claimant’s employment. Following surgery, claimant was assigned a permanent partial disability rating of 15 percent. Claimant then sought the payment of permanent partial disability benefits from the employer.
An Administrative Law Judge denied claimant’s request for permanent partial disability benefits on the basis that the claim was barred under the statute of limitations set forth in O.C.G.A. §34-9-104 (b). Claimant appealed the decision to the Appellate Division, which affirmed the decision of the Administrative Law Judge. Claimant then appealed to the Superior Court of Lowndes County, which affirmed the decision of the Appellate Division. Claimant then filed an appeal with the Court of Appeals.
Before the Court of Appeals, claimant argued that, although his claim for permanent partial disability benefits was not filed within four years of the last time that he received temporary total disability benefits and would thus normally be barred by the applicable statute of limitations, that the Court should create an exception to the statute of limitations and allow his claim to go forward. Claimant argued that the application of the statute of limitations lead to an absurd and inequitable result in that an employee with an otherwise meritorious claim for permanent partial disability benefits would be barred from receiving said benefits because he chose to return to work, while a similarly situated employee who chose not to return to work, and received temporary total disability benefits until a subsequent surgery was performed and a permanent partial impairment rating was assigned, would not be barred by the statute of limitations.
While the Court was sympathetic to the claimant’s argument that the result was harsh and inequitable, it concluded that the Court should not create an exception to the statute of limitations. The Court noted that “[w]hen consider[ing] the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a), 751 S.E. 2d 337 (2013). Further, it was noted that “[w]here the language of a statute is plain and susceptible of only one natural and reasonable construction, an appellate court must construe the statute accordingly.” In re L.T., 325 Ga. App. 590, 592, 754 S.E. 2d 380 (2014). In the instant case, the statute was clear and ambiguous, and its plain and ordinary meaning was that the statute bars claims for permanent partial disability benefits made more than four years from the last payment of either temporary total disability benefits or temporary partial disability benefits. Accordingly, the Superior Court’s decision was affirmed.
J & R Schugel Trucking v. Logan
Court of Appeals of Georgia, A16A0137
Decided April 22, 2016
Did the Superior Court err in overturning the Appellate Division’s finding that the claimant was not entitled to medical benefits on the basis that the Appellate Division’s ruling was contrary to law pursuant to O.C.G.A. § 34-9-105 (c)(5)? In a 3-0 decision, the Court of Appeals ruled that it was error.
Claimant was involved in a workplace accident in August 2013. At the time of the accident, the claimant, a North Carolina resident, was working in Georgia for an employer located in Minnesota. Claimant initially received workers’ compensation benefits under Minnesota law; however, the claimant’s benefits were suspended in September 2013 due to a lack of evidence of disability. In October 2013, claimant filed a workers’ compensation claim in Georgia seeking the recommencement of income benefits and medical treatment under Georgia law. Employer controverted the Georgia claim on the basis that there was no evidence to support the fact that the claimant suffered from any continued disability and that the claimant had no need for ongoing medical treatment.
The Administrative Law Judge ruled that, although the claimant had no continuing disability from the injury and was thus not entitled to any income benefits under Georgia law, that she was still entitled to receive medical benefits.
The Appellate Division contended that the Administrative Law Judge erred in finding that the claimant was entitled to ongoing medical benefits. The Appellate Division found that the competent and credible evidence did not support the Administrative Law Judge’s findings and made substituted factual findings to conclude that the claimant was not entitled to medical benefits. The Appellate Division accepted the finding that the claimant was not entitled to income benefits. The matter was appealed to the Superior Court.
Before the Superior Court, the claimant conceded that she did not dispute the fact that the evidence in the record supported the Administrative Law Judge’s decision. Instead, the claimant argued that the issue was not whether the Appellate Division’s award was supported by the evidence, but rather whether the Appellate Division acted without or in excess of its powers and whether its aware was contrary to law.
The Superior Court set aside the Appellate Division’s decision on the grounds that it was contrary to law under O.C.G.A. § 34-9-105 (c)(5). In support of its finding, the Superior Court concluded that transcript of the hearing before the Administrative Law Judge showed that the Administrative Law Judge intended to hold the hearing record open so that an additional medical report could be filed and considered; that the Administrative Law Judge subsequently refused to include the report in the record; and that this prevented the filing of additional evidence necessary to complete the record. Accordingly, the Superior Court found that the Administrative Law Judge’s decision to exclude the medical report was contrary to law, as it left the record incomplete. This being the case, the Superior Court concluded that the Appellate Division’s decision finding that the claimant was not entitled to medical benefits was also contrary to law pursuant to O.C.G.A. § 34-9-105 (c)(5).
The Court of Appeals found that there was no basis for the Superior Court’s order setting aside the Appellate Division’s decision as contrary to law. Because there was no basis for the Superior Court to find that the Appellate Division was contrary to law, it concluded that the Superior Court erred pursuant to O.C.G.A. § 34-9-103 (a), which states that “the appellate division shall review the evidence and shall then make an award with findings of fact and conclusions of law.” The section goes on to state that “[t]he findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.”
As it was undisputed that there was evidence supporting the findings of the Appellate Division, the Court of Appeals concluded that the Superior Court had erred in setting aside the Appellate Division’s decision and reversed the Superior Court’s ruling.
Whitfield v. Macy’s, Inc.
Court of Appeals of Georgia, A15 A2316, Not officially reported
Decided February 10, 2016
Did the Superior Court err in reversing the Appellate Division’s decision that the Claimant was entitled to additional income benefits?
The Claimant was injured in the course of her employment on September 19, 2010. Macy’s denied the claim. After a hearing, benefits were awarded by the Administrative Law Judge who found that the Claimant had sustained a compensable injury along with work-related aggravation of a pre-existing psychological condition. The ALJ awarded significant periods of temporary total and temporary partial along with a 15 percent penalty for late payment and various medical treatment. The Appellate Division changed the ALJ’s award regarding temporary partial disability benefits and reversed the award of medical treatment for a psychological condition. The Appellate Division pointed out that permanent partial disability benefits were not being awarded but otherwise upheld the ALJ’s decision.
Macy’s appealed to the Superior Court which reversed the Board’s decision.
The Court of Appeals granted the request for discretionary appeal.
The Court of Appeals reversed the Superior Court and reinstated the Appellate Division’s award based on the any evidence rule.
Rule 200.2 effective January 1, 2016
Medical Case Management
In claims involving non-catastrophic injuries, employers/insurers may voluntarily utilize qualified medical case managers to provide telephonic or field medical case management services. Qualified medical case managers must possess certification or licensure of at least one licensing agency contained in Board Rule 200.1 (I)(A). Such medical case management services may be provided at the expense of the employer/insurer. Consent of the employee or the employee’s attorney shall be required for any medical case manager to work with the injured worker. Consent shall be in writing when attending any medical appointment. Where consent is required, it may be withdrawn and the employee shall be informed in writing that such consent may be refused. Consent of the employee shall not be required for such qualified medical case manager to contact the treating physician for purposes of assessing, planning, implementing and evaluating the options and services required to effect a cure or provide relief. All communications are subject to the provisions of Rule 200.1(II)(D). Nothing in this rule shall be construed to allow or promote utilization review on the part of the medical case manager. The medical case manager may assist with approval of job descriptions only as consistent with O.C.G.A. § 34-9-240 and Board Rule 240. Violations of this rule may be referred to the Rehabilitation Division for peer review as contemplated by Rule 200.1( IV).
Case managers may be involved in cases where the employer/insurer has contracted with a certified workers’ compensation managed care organization (WC-MCO). These case managers shall operate pursuant to the provisions of O.C.G.A. §34-9-208 and Board Rule 208.
Nothing contained in this Rule shall apply to a direct employee of the insurer, third party administrator or employer, or to an attorney representing a party, provided that their specific role is identified.
Burdette v. Chandler Telecom, LLC
Court of Appeals of Georgia, A15A1423
Decided October 30, 2015
Did the Superior Court err in affirming the Appellate Division’s decision that claimant’s descending a tower by “controlled descent,” contrary to his supervisor’s instruction, was willful misconduct pursuant to O.C.G.A. § 34-9-17 (a)? In a 3-0 decision, the Court of Appeals ruled that it was error.
On November 5, 2012, claimant worked on top of a cell tower with a co-worker. Claimant’s supervisor instructed the crew that they were to climb down the towers and were not to use a “controlled descent.” At the end of his shift, claimant’s co-worker reminded claimant to climb down the tower. After being instructed to climb down the tower several more times, claimant began a controlled descent down the tower. In so doing, claimant fell from the tower, sustaining serious injuries to his ankle, leg, and hip.
The Administrative Law Judge denied the claim holding that claimant was barred from recovery because he had engaged in willful misconduct within the meaning of O.C.G.A. § 34-9-17 (a) when he was injured as a result of defying his supervisor’s instructions.
The Appellate Division affirmed. Claimant then appealed to the Superior Court. The Appellate Division’s decision to deny benefits was affirmed by operation of law 60 days after it was docketed in the Superior Court. Claimant’s application for discretionary appeal was granted.
Before the Court of Appeals, claimant argued that the Administrative Law Judge and the Appellate Division erred in finding that his workers’ compensation claim was barred because his injury resulted from his own willful misconduct.
The Court advised that willful misconduct is an affirmative defense that the employer must prove by a preponderance of the evidence. While O.C.G.A. § 34-9-17 does not define the term willful misconduct, the Supreme Court of Georgia has stated that the “mere violation of rules, when not willful or intentional, is not willful misconduct, within the meaning of the laws upon the subject of workers’ compensation.” Aetna Life. Ins. Co. v. Carroll, 169 Ga. 333, 342 (1), 150 S.E. 208 (1929). The Court continued by stating that there must be “something more than thoughtlessness, heedlessness, or inadvertence in violating a rule or order of the employer, to constitute willful misconduct,” adding that there “must be a willful breach of the rule or order.” Id. In fact, the Court went on to state that “[i]f the workman is acting within the scope of his employment, mere disregard of a rule or order does not become such misconduct, unless the disobedience be in fact willful or deliberate, and not a mere thoughtless act, done on the spur of the moment.” Id. The Court concluded that the general rule is that “mere violations of instructions, orders, rules, ordinances, and statutes, and the doing of hazardous acts where the danger is obvious, do not, without more, as a matter of law, constitute [willful] misconduct.” Roy v. Norman, 261 Ga. 303, 304, 404 S.E. 2d 117 (1991).
Claimant cited Wilbro v. Mossman to support his contention that his disobedience of a work rule did not constitute willful misconduct as a matter of law. In Wilbro, the Court of Appeals held that an employee’s conduct “cannot constitute willful misconduct as a matter of law since the conduct was at most a violation of instructions and/or the doing of a hazardous act in which the danger was obvious, but was not conduct that was criminal or quasi-criminal in nature.” Wilbro v. Mossman, 207 Ga. App. 387, 390, 427 S.E. 2d 857 (1993).
The Court concluded that while the claimant was injured when he intentionally violated a work rule and his supervisor’s instructions the Court concluded that his conduct was not “quasi-criminal in nature,” involving “the intentional doing of something, either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences. Carroll, 169 Ga. 342. In fact, the Court went on to state that the employer had actually required its employees to learn the skill of controlled descents as it may be necessary under emergency situations. This was not something that the employer would require its employees to learn if serious injury were the likely or probable result of the conduct. Ultimately, the Court determined that the employer had not met its burden of showing the claimant’s use of a controlled descent was willful misconduct within the meaning of O.C.G.A. § 34-9-17 (a).
Barnes v. Roseburg Forest Products Company, et al.
Court of Appeals Case No. A15A0405
Decided July 16, 2015
Did the Superior Court err in affirming the Appellate Division’s decision denying a claim for recommencement of indemnity benefits based on the two-year statute of limitation for change in condition claims and for benefits pursuant to a fictional new accident date based on the one-year statute of limitation? In a 3-0 decision, the Court of Appeals ruled that it was error and reversed.
The claimant sustained a workplace injury which resulted in a leg amputation in August 1993 while working for Georgia-Pacific. The claim was accepted as catastrophic, and TTD benefits were paid until the claimant returned to work in January 1994. He was paid PPD benefits until May 1998. He did not receive and workers’ compensation income benefits thereafter.
When the claimant was unable to perform regular work duties, he transferred to a light duty position incorporating duties he was able to perform. He continued working in a light duty position until 2008.
In 2006, the Georgia-Pacific sold the claimant’s plant to Roseburg Forest Products Company (“Roseburg”). In 2008, Roseburg eliminated several positions, including the claimant’s light-duty supervisory position. The claimant continued to work at the plant in a more physically demanding position, which caused pain and swelling in his injured limb. The claimant was terminated in a second round of layoffs in 2009.
In August 2012, the claimant asserted a claim for reinstatement of TTD based on his 1993 injury, claiming that as a catastrophically injured worker, he was entitled to receive benefits beginning on the date he no longer had a job. Georgia-Pacific and Roseburg both controverted on the basis that, inter alia, the two-year statute of limitation for a change in condition set forth in O.C.G.A. § 34-9-104 had expired.
In November 2012, the claimant filed a separate notice of claim with Roseburg, asserting an injury date of September 11, 2009, contending that his termination constituted a fictional new accident. Roseburg controverted this claim on the basis that, inter alia, the statute of limitatsion for an “all-issues” case set forth in O.C.G.A. § 34-9-82 had expired.
The Administrative Law Judge (“ALJ”) denied both claims as barred by the statutes of limitation set forth in O.C.G.A. §§ 34-9-104 and 34-9-82. The State Board’s Appellate Division adopted the ruling, and the Superior Court affirmed.
Before the Court of Appeals, the claimant argued that the Board erred by finding that the two-year statute of limitation set forth in O.C.G.A. § 34-9-104 barred his claim with respect to the August 1993 injury. The claimant argued that O.C.G.A. § 34-9-261 should be interpreted as authorizing an employee who has sustained a catastrophic injury to assert a claim to reinstate benefits when he experiences a change in condition, even if that change in condition occurs more than two years after the date that the last benefit payment was made.
The Court of Appeals determined that the Board had erred in adopting the ALJ’s ruling that the two-year statute of limitation in O.C.G.A. § 34-9-104 barred the claimant’s catastrophic injury claim. The Court reasoned that this was a situation that the Workers’ Compensation Act had not contemplated: a situation in which an employee returned to work with significant limitations, despite a catastrophic injury, and then, more than two years after the last benefit payment was made, tried to resume the payment of benefits.
The Court noted that, pursuant to O.C.G.A. § 34-9-261, the 400-week cap on TTD benefits does not apply to an employee who has suffered a catastrophic injury. The Court found that the legislature intended to allow those who had more serious injuries to receive benefits indefinitely, so long as they remained catastrophically injured, including in situations where an application for reinstatement of benefits on a change in condition was made more than two years after the last payment of benefits.
The claimant also argued that the Board erred by finding that his claim based on a fictional new accident was barred under the applicable statute of limitation set forth in O.C.G.A. § 34-9-82. The Court agreed. The Court concluded that the claim was filed on November 30, 2012, which was within one year of a December 2011 replacement of his prosthetic leg. The Court held that this replacement constituted remedial treatment for the fictional new accident, and a claim filed within one year of the replacement was not barred. The Court rejected Roseburg’s arguments that the replacement was part of the 1993 claim and not remedial treatment for a fictional new accident. The Court also rejected Roseburg’s argument that the replacement could not toll the statute of limitation because it was provided more than one year after the previous treatment.
The Court of Appeals held that because the Administrative Law Judge’s decision was based on its finding that the claims were not timely filed, the Administrative Law Judge and, consequently, the Appellate Division and Superior Court, did not fully consider the claimant’s arguments. Accordingly, the Superior Court’s ruling was reversed and the claims remanded to the Board for further consideration.
The decision by the Court of Appeals is wrong for a number of reasons.
The claim for reinstatement of benefits for the original, 1993 claim is based on a contention that the claimant experienced a change in condition for the worse when he stopped working in 2009. The employer conceded that the claimant had undergone such a change. However, O.C.G.A. § 34-9-104 provides that a claimant may apply for a decision authorizing the recovery of additional income benefits based on a change in condition, provided that at the time of the application not more than two years have elapsed since the date of last payment of TTD or TPD was actually made.
The Court of Appeals disregarded the plain language of the statute and found that the legislature intended to create an exception for catastrophic injuries when the legislature had not done so. In so holding, the Court referred to O.C.G.A. § 34-9-261, which provides that TTD shall be payable for a maximum of 400 weeks from the date of injury, unless an injury is catastrophic, in which case TTD is payable “until such time as the employee undergoes a change in condition for the better.” While the Court is correct that this shows the legislature intended to treat catastrophic claims differently from other claims, it also shows that the legislature is capable of stating exceptions for catastrophic claims when it intends them. Rather than acknowledge that an exception was clearly omitted by the legislature, the Court created an exception where there was none.
O.C.G.A. § 1-3-1(b) provides that “[i]n all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter.” The two-year statute of limitation clearly states that an application for additional benefits for a change in condition can be made only when “not more than two years have elapsed” since the date the last payment of TTD or TPD was made. Had the legislature intended an exception for catastrophic injuries, it could have and would have stated one, as it did in other parts of the Act.
The claim for benefits based on a fictional new injury in 2009 is barred if no claim was filed within one year after the injury or within one year after the date of the last remedial treatment furnished by the employer. The Court of Appeals held that the December 2011 replacement of the claimant’s prosthesis constituted remedial treatment for the 2009 claim so that the claim filed in November was within one year. The Court did not point to any factual finding or evidence that the prosthesis replacement constituted treatment for a 2009 injury as opposed to the 1993 injury that resulted in the amputation. Without such evidence, the statute of limitation in O.C.G.A. § 34-9-82 bars the claim. Moreover, Roseburg asserted that that remedial treatment for a fictional 2009 claim had not been commenced within a year of the alleged injury date. The Court of Appeals did not recite any factual findings on the issue, but given Roseburg’s argument, it appears that there was no remedial treatment for a year after the claimant’s last day of work. Accordingly, even if the prosthesis replacement was found to be treatment for a 2009 fictional claim, the statute of limitations on a 2009 claim had already run, since no claim had been filed within a year. An employer’s voluntary payment of medical expenses cannot revive a claim once the statute of limitations has run.
A petition for certiorari has been filed with the Supreme Court of Georgia.
Workers’ Compensation Medicare Set Aside Arrangements
Monk v. Parker
Court of Appeals of Georgia, A14A11603
Decided March 30, 2015
Did the Superior Court err in affirming the Appellate Division’s decision granting the claimant’s current counsel’s Motion to Dismiss the claimant’s former counsel’s attorney fee lien? In a 3-0 decision, the Court of Appeals determined that it had not.
Claimant’s former counsel filed fee lien for services rendered. Claimant’s current counsel moved for an Order dismissing former counsel’s lien on the basis that the lien was not served on all counsel, as required by Board Rule 108 (e). The Administrative Law Judge found that former counsel had committed a technical violation of Board Rules, as he did not deny that he had failed to properly serve a copy of the lien upon all represented parties, but the Administrative Law Judge held that the unserved parties had not been harmed because they had received actual notice of the filing through the State Board’s electronic filing system. The Administrative Law Judge also found that current counsel had demonstrated a certain lack of diligence in failing to move for the lien’s dismissal until more than one year after it was filed. The Administrative Law Judge did not grant the Order. Current counsel appealed.
The Appellate Division reversed the Administrative Law Judge’s decision finding that, pursuant to Board Rule 108 (e), in order to perfect an attorney fee lien, a former attorney must file written notice of the contended value of services and/or expenses with State Board on Form WC-108b within 20 days after either withdrawing from the case, or receiving notice of termination in writing from the employee. The Appellate Division went on to state that a former attorney shall serve a copy of the WC-108b on all unrepresented parties and counsel. The Appellate Division determined that Board Rule 108 (e) plainly states that the failure to perfect a lien in this prescribed manner will be considered a waiver of further attorney fees.
The Appellate Division concluded that former counsel had set forth no evidence to dispute current counsel’s allegation as to insufficient service of the attorney fee lien, and held that notice from the State Board’s electronic filing system was not a substitution for the service requirement contained in Board Rule 108 (e). Absent proper service, the Appellate Division concluded that the lien had not been perfected. The Appellate Division reversed the Administrative Law Judge and held that current counsel’s Motion to Dismiss former counsel’s attorney fee lien should be granted.
Former counsel appealed to the Superior Court. The Superior Court affirmed the Appellate Division’s findings based upon the any evidence standard of review. The Court of Appeals then granted former counsel’s application for discretionary appeal.
Before the Court of Appeals, former counsel first argued that the Superior Court had erred in reviewing the Administrative Law Judge’s decision under the “any evidence” standard. Current counsel contended that the records did not establish that they received a computer-generated notice when former counsel filed his fee lien, and disputed that the Stipulation and Agreement they entered into upon settling the claim acknowledged former counsel’s rights to attorney fees. The Court held that to the extent that the Appellate Division made disputed findings of fact, the Superior Court properly reviewed them under the any evidence standard of review.
Former counsel also contended that the Appellate Division erred in its legal interpretation of Board Rule 108 (e) by failing to uphold the Administrative Law Judges determination that current counsel had waived the service requirement. He further argued that in failing to uphold the initial finding of waiver, that the State Board and the Superior Court entertained remedies outside of their collective jurisdictions. The Court of Appeals stated that when reviewing an administrative agency’s interpretation of a statute that it has the duty to enforce and its application of the rules it promulgated to carry out that duty, that they ordinarily grant great deference to the agency’s decision. See MARTA v. Reid, 295 Ga. 863, n. 6, 763 S.E. 2d 695 (2014); Lane v. Williams Plant Srvcs., 330 Ga. App. 416, 416-17, 766 S.E. 2d 482 (2014).
The Court found no error in the Superior Court’s decision to affirm the Appellate Division’s dismissal of former counsel’s attorney fee lien finding, that the Appellate Division did not entertain remedies outside of its jurisdiction, but simply applied the rules to the facts placed before it. The Court held that Board Rule 108 (e) addresses the procedures required to file and perfect an attorney fee lien. Former counsel did not follow the steps set forth in the Board’s rules, and, consequently former counsel’s lien was not perfected. Thus, the Court found no error in the Superior Court’s decision to affirm the decision of the Appellate Division.
Finally, former counsel argued that the decisions of the Superior Court and the Appellate Divisions unconstitutionally deprived him of his vested property right to attorney fees previously granted to him by the State Board. The Court found that the record did not establish that former counsel had a vested right to any fees. Therefore, the Court found that his argument was equally without merit.
The order of the Superior Court was affirmed.
Save-A-Lot Food Stores et al. v. Amos
Court of Appeals of Georgia, A1411633
Decided March 25, 2015
Did the Administrative Law Judge and the Appellate Division impose on the claimant a burden of proof higher than the applicable preponderance of competent and credible evidence standard set forth in O.C.G.A. § 34-9-1 (4)? In a 3-0 decision, the Court of Appeals determined that they had not.
The claimant sought workers compensation benefits, claiming that he was disabled as a result of a work-related stroke. His employer controverted the claim. The Administrative Law Judge denied the claimant’s request for benefits, finding that the claimant had not shown that he had suffered a stroke, and that even if he had, the stroke was not caused by work stress. It was determined that the claimant had failed to prove by the preponderance of competent and credible evidence that he had suffered a suffered a stroke arising out of and in the course of his employment. The claimant appealed.
On appeal, the claimant argued that the Administrative Law Judge had unfairly held him to a heightened standard of proof. Specifically, he pointed to a portion of the Administrative Law Judge’s Order which stated that “[t]he standard of proof on all factual questions is by a preponderance of the credible evidence. Employee is required to meet a higher standard of proof to establish that his alleged stroke is compensable. That proof must be supported by medical evidence.” The Appellate Division affirmed the Administrative Law Judge’s decision, striking the language pertaining to the higher standard of proof. The claimant appealed this decision to the Superior Court.
The Superior Court reversed the decision of the Appellate Division holding that the “higher standard of proof” language was erroneous and that the Appellate Division had recognized the error, but had failed to correct it. The case was remanded to the State Board. The employer filed an application for discretionary review of the Superior Court’s Order, which was granted by the Court of Appeals.
The Court of Appeals found that an employee seeking workers’ compensation benefits based on a stroke must produce medical evidence to support a claim for benefits. The Court of Appeals concluded that the Administrative Law Judge had applied the correct standard of proof. The Court concluded that while the Administrative Law Judge had stated that the claimant was required to meet a higher standard of proof to establish that his alleged stroke was compensable, the Administrative Law Judge never identified any standard of proof beyond preponderance of the evidence. Instead, the Court determined that it was clear from the context of the statement that the Administrative Law Judge was merely referring to the statutory requirement that the claimant support his stroke claim with medical evidence. Accordingly, the Court found that the Superior Court’s ruling was erroneous and its decision was reversed.
ABF Freight System, Inc. v. Presley
Court of Appeals of Georgia, A14A1723
Decided March 4, 2015
Was the claimant’s lost time due to his right knee surgery due to a change in condition or a fictional new accident?
On June 4, 2009, the claimant sustained a work related injury to his right knee which required surgery. Claimant remained out of work receiving income benefits until September 15, 2009. On September 16, 2009, he returned to work without restrictions and performed his normal job duties, including loading and unloading trucks by hand and machine and driving a tractor-trailer. His right knee pain worsened. On March 17, 2010 he was diagnosed with arthritis in his right knee and told that he would eventually need a right knee replacement. Again, in June or July of 2010, the claimant was advised that he might need surgical replacement of his right knee.
On December 4, 2009, the claimant sustained a compensable injury to his left knee which resulted in surgery and being out of work from June 24, 2010 and September 18, 2010 receiving income benefits. On September 20, 2010, he returned to work without restrictions and resumed his normal job duties.
The claimant’s right knee pain worsened following his left knee surgery. On February 4, 2011, the claimant was diagnosed with a recurrent tear of the medial meniscus in his left knee. The claimant continued to work his normal job duties and his right knee pain continued to worsen. In February 2012, the claimant was advised that a right knee replacement surgery was necessary.
The claimant underwent a right total knee replacement on June 19, 2012. Following the surgery, the claimant was placed on no work status until October 29, 2012. On March 21, 2013, the claimant sought the payment of temporary total disability benefits from June through October 2012, arguing that he had stained a fictional new injury.
While the parties agree that no singular specific incident created the need for the claimant’s total right knee replacement, a dispute arose concerning whether claimant’s temporary total disability arising from his right knee replacement is a fictional new accident, or a change in condition for the worse.
The claim for income benefits was denied by the Board on the basis that the two year statute of limitation in O.C.G.A. § 34-9-104 (b) barred the claim as the claimant had last received income benefits for his right knee injury on September 15, 2009. The superior court reversed and remanded the case back to the Board for consideration of certain evidence. The employer filed an application for discretionary review, which was granted by the Court of Appeals. The employer appealed.
In its decision, the Court of Appeals stated that a fictional new accident occurrs when a claimant is injured but continues to work until he is forced to cease work because of the gradual worsening of his condition which was at least partially attributable to his physical activity in continuing to work subsequent to his injury. See Central State Hosp. v. James, 147 Ga. App. 308, 209 (1) (a), 248 S.E. 2d 678 (1978).
A change in condition occurs when the claimant is injured and is paid weekly income benefits but later he returns to his normal duties or ordinary work. Then, as a result of the wear and tear of ordinary life and the activity connected with performing his normal duties and not because of a specific job-related incident, his condition gradually worsens to the point that he can no longer continue to perform his ordinary work. See Central State Hosp. v. James, 147 Ga. App. 308, 209 (1) (a), 248 S.E. 2d 678 (1978).
A distinguishing feature in a “change in condition” versus “fictional new accident” is the intervention of new circumstances and is a question of fact. See Certain v. U.S. Fidelity & Guar. Co., 153 Ga. App. 571, 573, 266 S.E. 2d 263 (1980).
The Administrative Law Judge denied benefits on the basis that the two year statute of limitation set forth in O.C.G.A. § 34-9-104 (b) barred the claim since the claimant had last received temporary total disability benefits for his right knee injury on September 15, 2009. The Administrative Law Judge determined that the claimant had undergone a change in condition for the worse, and not a fictional new accident, as the claimant’s right knee condition was said to have been related to his June 4, 2009 accident/injury. While the determination was a close one, the Administrative Law Judge ultimately decided that there were not any new and/or different circumstances concerning the employee’s job duties that caused a new injury. The Board adopted this decision.
Superior Court reversed the decision and remanded the case to the Board, finding that the Board had failed to consider all of the evidence in light of correct and applicable legal principles, specifically whether the claimant’s left knee injuries constituted “new circumstances” that caused a worsening of his right knee condition resulting in his disability in June 2012, the Court of Appeals determined that the Board had considered this fact and had determined that left knee injuries had not caused a worsening of the claimant’s right knee condition. In fact, the Court found that the evidence supported the Administrative Law Judge and the Board’s determination that the claimant’s right knee was never the same after surgery and simply grew worse without any additional injuries of job responsibilities. Accordingly, the evidence supported the finding that the claimant underwent a change in condition for the worse and not a fictional new accident.
Emory University v. Duval
Court of Appeals of Georgia, A14A2270
Decided February 10, 2015
Did the Superior Court err in reversing Appellate Division’s award denying benefits based on its findings that the claimant’s injury was the result of a non-work related aggravation? In a 3-0 decision, the Court of Appeals determined that it had not and reversed the decision of the superior court.
The claimant was a nurse who suffered a compensable injury to her right shoulder while lifting a patient. She received treatment for her injury with an orthopedic surgeon in and returned to full-time work shortly thereafter.
In February 2011, she returned to the same orthopedic surgeon with complaints of pain in her left shoulder. Following an MRI, surgery was recommended for a rotator-cuff tear in the left shoulder. This surgery was performed in November 2011. The claimant never returned to work after following her left shoulder surgery.
After surgery, the claimant was unable to use her left arm for eight weeks. She testified that it was difficult and painful to rely solely upon her right arm, so in February 2012 she returned to the orthopedic surgeon who provided her with two additional injections in her right shoulder. When the injections failed to alleviate her pain, the doctor ordered an MRI. Ultimately, it was recommended that the claimant undergo a surgical procedure to repair a rotator-cuff tear in the right shoulder.
The claimant filed a hearing request seeking additional medical benefits for her December 3, 2010 compensable right shoulder injury, including the surgery recommended by the orthopedic surgeon; a determination that her left shoulder condition was a compensable injury causally related to her 2010 right shoulder injury; temporary total disability benefits from November 2011, and continuing based upon both shoulder injuries; and assessed attorney’s fees. The employer contended that the claimant’s 2010 right shoulder injury was temporary and had resolved with medical treatment, and that the left shoulder injury was unrelated to her employment.
Following a hearing, the Administrative Law Judge concluded that the left shoulder injury was not a compensable injury, but that the right shoulder injury was an aggravation of the December 2010 injury. In making this decision, the Administrative Law Judge relied upon the claimant’s medical records from the orthopedic surgeon.
On appeal, the Appellate Division relied upon the conclusions reached by an expert that had been retained by the employer, who concluded that the December 2010 right shoulder injury and the current right shoulder problems were unrelated. Specifically, the Appellate Division determined that the December 2010 injury had resolved one year before the reemergence of complaints related to the right shoulder which occurred after the claimant had stopped working to undergo surgery on her left shoulder.
The claimant then appealed to the Superior Court. The Superior Court reversed the Appellate Division’s decision and remanded the claim back to the Appellate Division noting that it could not “reject a finding of fact made in the trial division if that finding is supported by a preponderance of the competent and credible evidence contained within those records.” The Superior Court, therefore, ordered the Appellate Division “to either accept [the] finding of fact . . . or provide rational[e] of why the treating physician’s opinion was rejected.” The employer appealed.
The Court of Appeals, relying on the any evidence rule, reversed the Superior Court.
Bonner-Hill v. Southland Waste Systems, Inc.
Court of Appeals A1410931
Decided November 18, 2014
Did the State Board err in reversing the Administrative Law Judge’s award of benefits on the basis that the ingress/egress rule did not apply to the facts and circumstances of this case? In 3-0 decision, the Court of Appeals ruled that it was error.
The claimant’s employer operated out of a building that could only be accessed by crossing a railroad track. The employer leased the property on which it operated and the leased premises included access to the property over an entrance road for ingress and egress including the vehicles of its employees, and business invitees.
On March 4, 2010, the claimant’s vehicle was struck by a train on the entrance road while he was on his way to work. The collision resulted in the claimant’s death. The claimant’s widow filed a claim for workers’ compensation death benefits. The employer asserted that the death had not occurred in the course of employment.
The Administrative Law Judge determined that the claim was compensable based upon a finding that the short entrance road, which crossed the railroad track, was the only means by which the claimant could access his work place. The Administrative Law Judge concluded that because Hill had no alternative route to take to get to the building, the entrance road was part of the business premises, his arrival was during a reasonable time before his scheduled shift, and Southland had control over the entrance road pursuant to the lease, the claim was compensable. The employer appealed.
The State Board determined that because Hill had not arrived to work prior to the accident, the ingress/egress rule did not apply. The State Board concluded that the ingress/egress exception only applied to accidents that occurred on the employer’s premises and, because Southland did not exclusively own, maintain, or control the entrance road upon which Hill was traveling, the State Board determined that Hill had not arrived at work, thus the case from the ingress/egress rule. The widow/claimant appealed to the Superior Court which affirmed by operation of law.
The Court of Appeals accepted the widow’s application for discretionary appeal. The claimant argued that the State Board erred by determining that an employer must have exclusive use of a property in order to have sufficient “control” over the property for the ingress/egress rule to apply when determining whether the accident or injury arose out of and in the course of employment.
The Court stated “[t]he general rule is that an accidental injury which occurs while an employee is traveling to or from work does not arise out of or in the course of employment, and therefore the injury is not compensable under the [Act].” See Longuepee v. Ga. Institute of Technology, 269 Ga. App. 884, 885, 605 S.E. 2d 455 (2004) and Fed. Ins. Co. v. Coram, 95 Ga. App. 622, 624, 98 S.E. 2d 214 (1957). Despite that, the Court continued by noting that exceptions to this general rule existed with respect to ingress and egress. Under the ingress/egress rule, the Court stated that if an employee is injured while on the employer’s premises in the act of going to or coming from his place of work, the injury is compensable.
The Court found that the ingress/egress exception would apply if the claimant was injured in an area (1) limited (or very nearly so) to the employer’s business, even if the business’s right to the area is merely a leasehold interest or some other non-exclusive access; or (2) owned, maintained, or controlled by the business, even though the area is heavily traversed by the public without connection to the business. See Knight-Ridder Newspaper Sales, Inc. v. Desselle, 176 Ga. App. 174, 174-175, 335 S.E. 2d 458 (1985) and Longuepee, 269 Ga. App. At 885.
The Court determined that based upon the description of the property detailed in the lease agreement, that the claimant had arrived at the employer’s premises when the accident occurred, thus triggering the application of the ingress/egress rule. Accordingly, the Court determined that the Superior Court erred by affirming the State Board’s reversal of the Administrative Law Judge’s award of benefits.
Barzey v. City of Cuthbert
Supreme Court of Georgia, S14A0620
Decided September 22, 2014
Does limiting death benefits to dependents render the Workers’ Compensation Act unconstitutional so that a non-dependent parent of a deceased employee may avoid the exclusive remedy and sue under O.C.G.A. §§ 34-7-20 and 19-7-1 (c)?
Deron Shorter, who died in work accident in 2010 was unmarried with no dependants. His non-dependant mother filed suit against the City seeking a judgment declaring that she had the right to sue the City under O.C.G.A. §§ 34-7-20 and 19-7-1 (c).
The plaintiff asserted that the Workers’ Compensation Act violates her constitutional rights to due process and equal protection by precluding her from asserting a claim to recover for her son’s death.
The City filed a motion for summary judgment which was granted. In its Order, the trial court stated that all claims that the Georgia Workers’ Compensation Act violate the 5th and 14th Amendments to the United States Constitution are meritless. The plaintiff directly appealed to the Supreme Court of Georgia, which has exclusive appellate jurisdiction over “all cases in which the constitutionality of a law . . . has been drawn into question.” See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (2).
The Supreme Court found that jurisdiction was proper within the Supreme Court because the plaintiff stated in the trial court that the provisions of the Georgia Workers’ Compensation Act limiting her recovery for her son’s death violated her rights to due process and equal protection, the trial court explicitly ruled on the plaintiff’s federal constitutional claims, the plaintiff enumerated that ruling was in error on appeal, and that the Supreme Court had not previously decided these specific constitutional challenges to the Act.
With respect to the claimant’s constitutional claims, the plaintiff contended that the Georgia Workers’ Compensation Act violated her federal constitutional rights to due process and equal protection by precluding her, as a non-dependent parent, from recovering from her son’s former employer for his death during the course of his employment.
Since the plaintiff’s due process and equal protection challenges to the Georgia Workers’ Compensation Act did not involve a fundamental right or a suspect class, then they would be examined under a “rational basis test.” See State v. Nankervis, __ Ga. __, __ SE 2d __ (Case No. S14A0513, decided June 30, 2014) (2014 WL 2924864, *2). Under the rational basis test, a statute does not violate due process in substance as long as it “bear[s] a rational relationship to a legitimate objective of the government.” Id. Similarly, in order to survive an equal protection challenge, the Court held that “the classifications drawn in the statute [must] bear a rational relationship to a legitimate end of government not prohibited by the Constitution.” Id. The Court went on to state that “[i]n the arena of social welfare and economics, a statute is not rendered unconstitutional merely because its classifications are imperfect; [if] the classification has some reasonable basis, it does not offend the Constitution simply because the classification is not made with mathematical nicety or because in practice it results in some inequality.” See Ga. Dept. of Human Resources v. Sweat, 276 Ga. 627, 630, 580 SE 2d 206 (2003).
The Court held that because the Georgia Workers’ Compensation Act’s differing treatment of dependent and non-dependent heirs was not irrational and serves a legitimate governmental purpose, the Act’s limitation on recovery by non-dependent heirs does not violate due process or the equal protection rights guaranteed by the United States Constitution and the exclusive remedy precludes the plaintiff’s suit.
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