Worker's Compensation

• Jurisdiction: United States,Federal,Georgia
• Publication year: 2020
• Citation: Vol. 71 No. 1

Worker's Compensation

H. Michael Bagley

J. Benson Ward

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Workers' Compensation

by H. Michael Bagley^* and J. Benson Ward^**

I. Introduction

The 2018—2019 survey period featured important legislative changes as well as interesting decisions of the appellate courts addressing workers' compensation issues on such wide-ranging topics as scheduled break exceptions, the Insolvency Pool, and occupational diseases.¹

II. Legislative Update

The legislative package drafted by the Advisory council of the State Board of Workers' Compensation passed through both legislative chambers and effects multiple changes in the Workers' Compensation Act.² The statutory maximum for Temporary Total Disability benefits under O.C.G.A. § 34-9-261³ increased from $575 to $675 for injuries occurring after July 1, 2019, and the statutory maximum for Temporary Partial Disability benefits under O.C.G.A. § 34-9-262⁴ increased from $383 to $450 per week for injuries occurring after July 1, 2019. The maximum compensation payable to a surviving spouse in the event of a death claim under O.C.G.A. § 34-9-265(d)⁵ similarly increased to $270,000.

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The legislative changes created notable exceptions such as the 400-week cap on medical treatment in non-catastrophic claims.⁶ Effective July 1, 2019, an injured worker that is not catastrophically injured will be entitled to limited medical benefits beyond the 400-week cap to the extent that prosthetic devices, spinal cord stimulators, and certain durable medical equipment may require maintenance or repair where such durable medical equipment "was originally furnished within 400 weeks of the date of injury or occupational disease."⁷ "Durable medical equipment" is defined as "an apparatus that provides therapeutic benefits, is primarily and customarily used to serve a medical purpose, and is reusable and appropriate for use in the home," and includes "wheelchairs, beds and mattresses, traction equipment, canes, crutches, walkers, oxygen, and nebulizers."⁸ "Prosthetic device" is defined as "an artificial device that has, in whole or in part, replaced a joint lost or damaged or other body part lost or damaged as a result of an injury or occupational disease arising out of and in the course of employment."⁹

This amendment became effective July 1, 2019, but, as worded, purports to apply to all injuries that are not catastrophic which arose on or after July 1, 2013, and consequently, it is retroactive in application.¹⁰ This raises an interesting question, as "generally statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown."¹¹ However, "where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention."¹² Retroactive effect is also given to statutes affecting the remedy only, rather than the right to which the remedy attaches.¹³ "In order to decide whether [a] statute should be given prospective or retrospective effect, the statute must be examined to determine whether it is substantive in nature or" is procedural in nature.¹⁴ Arguably this amendment does "not [deal] with the compensability of claims but [rather] with the scope of the remedy" for claims already deemed to be

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compensable, and under this argument the effect would be remedial and possibly allow for retroactive effect.¹⁵

III. Intoxication and Drug Testing

In Lingo v. Early County Gin, Inc.,¹⁶ the Georgia Court of Appeals evaluated whether the employer met the requirements to trigger the rebuttable presumption of intoxication.¹⁷ The claimant worked at a cotton gin company, directing drivers "into a loading dock area where he would then assist in unloading modules of unginned cotton onto a platform."¹⁸ When a truck, lacking a functional back-up beeper, reversed into the loading dock, the claimant failed to see or hear the truck and was crushed against the dock, incurring multiple injuries requiring hospitalization.¹⁹ The employer sent a lab technician "to the hospital to obtain a urine sample" from the claimant for a post-injury drug test; however the claimant was undergoing surgery so "the technician was not [allowed] in the operating room," and instead she told an operating room nurse of her need for a sample and the nurse returned with a urine sample.²⁰ The technician did not have "first-hand knowledge of who collected the sample," which returned to show the presence of cannabinoid metabolites.²¹

Based on the drug test results, the employer denied the claim on grounds that under O.C.G.A. § 34-9-17(b)²² it was entitled to the rebuttable presumption that the injury was caused by the claimant's illegal marijuana use and intoxication.²³ The administrative law judge (ALJ) found that the employer was unable to rely on the statute's rebuttable presumption because it did not offer proof of who obtained the sample or otherwise establish that initial link in the chain of custody, ruled that the employer was otherwise unable to prove intoxication to bar the claim, and awarded the claimant benefits.²⁴ The Appellate Division of the State Board of Workers' Compensation (the Appellate Division) reversed, holding that the "defect in the chain of

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custody went to the weight of the evidence" and not to its admissibility, and held that the employer could "avail itself of the [statute's] rebuttable presumption and that" the claimant did not rebut the presumption that the "injuries were caused by his use of marijuana," and the superior court affirmed the Appellate Division's decision.²⁵

The court of appeals ruled that the lab technician's absence from the collection of the specimen, and the employer's inability to show that the sample was taken by a person who was authorized under O.C.G.A. § 34-9-415(d)²⁶ to collect a sample, prevented the employer from triggering the rebuttable presumption of intoxication in O.C.G.A. § 34-9-17(b).²⁷ The court observed that chain of custody issues in a criminal context are different from those in a workers' compensation claim, and inapplicable.²⁸ Accordingly, as the requirements for O.C.G.A. § 34-9-17(b)'s rebuttable presumption were not met, the court "vacate[d] the order of the superior court and remand[ed] to the Appellate Division for" a determination as to whether the employer had otherwise carried its burden of proving that the claimant was intoxicated and the intoxication caused the accident.²⁹ In a special concurrence, Judge Bethel noted that the failure to fully comply with O.C.G.A. § 34-9-415's requirements should go to the weight of the drug test evidence and not its admissibility.³⁰

IV. Ingress—Egress on Scheduled Breaks

The court of appeals issued two decisions during this survey period addressing the intersection of the ingress and egress rule and the regularly scheduled break exception.

In Frett v. State Farm Employee Workers' Compensation,³¹ the claimant worked as an insurance claims associate and had mandatory unpaid daily lunch breaks, which were on a staggered schedule, and during the scheduled breaks the associates logged out of the phone system and could do as they pleased, including leaving the office for lunch. On the day in question, when the claimant's scheduled lunch break began, she walked to the employer's breakroom to microwave her food. She slipped on water and fell while she was in the breakroom, injuring herself. The Appellate Division denied her workers'

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compensation claim because it occurred while she was on a scheduled lunch break.³²

The ALJ found that the claim was compensable and awarded benefits, based on a prior court of appeals decision, Rockwell v. Lockheed Martin Corp.,³³ which held that while injuries occurring during a regularly scheduled break are generally not compensable, injuries occurring on the employer's premises during periods of reasonable "ingress and egress" to and from those premises are compensable.³⁴ The Appellate Division "reversed the ALJ's award, concluding that [the] injury did not arise out of her employment because it occurred [during her] 'regularly scheduled break'" while "[she] was leaving to attend to 'a purely personal matter[,]" and the superior court affirmed.³⁵

The issue facing the court of appeals was whether the ingress and egress rule would serve as an exception to the general application of the regularly scheduled break exclusion.³⁶ The scheduled break exception originates from a 1935 Georgia Supreme Court decision,³⁷ and the rule is based on the idea that an injury does not arise out of the employment, but rather out of an employee's individual pursuit, when it occurs during a regularly scheduled break time when the employee is free to use the time as the employee so chooses.³⁸ The scheduled break exception applies even when the injury occurs within working hours and on the employer's premises.³⁹ On the other hand, the ingress and egress rule allows for the employee to have a reasonable time to enter or leave the employer's premises "'on the rationale that until the employee has departed the premises, he has not started traveling a route of his choosing wholly disconnected with his employment.'"⁴⁰ The court of appeals noted that in its decision in Rockwell, it applied the ingress and egress rule "to an employee leaving for a scheduled lunch break," when "[t]he employee fell while traveling across a walkway on

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her way to a parking lot" because she was in the process of leaving her employer's premises when the injury occurred.⁴¹

The court noted that the case law at "the intersection of the ingress and egress rule [and] the scheduled break rule [has led to] anomalous and arbitrary results" and conflicting decisions.⁴² The court of appeals deferred to the existing Georgia Supreme Court precedent laid down in Farr and disapproved of the previous court of appeals holdings that improperly diluted the regularly scheduled break exception by...