Workers' Compensation
| Jurisdiction | Georgia,United States |
| Publication year | 2015 |
| Citation | Vol. 67 No. 1 |
Workers' Compensation
H. Michael Bagley
J. Benson Ward
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The 2014-2015 survey period included decisions of the appellate courts on a wide variety of issues impacting the workers' compensation system, ranging from the average weekly wage to the statutes of limitation.1
The bill drafted by Chairman Frank McKay's State Board of Workers' Compensation's Advisory Council passed through four committees and both chambers of the Legislature without a dissenting vote and was signed into law by Governor Nathan Deal.2 The primary feature of the legislation was to address Estate of Mack Pitts v. City of Atlanta3 and the concerns regarding the impact of the decision.4 In Estate of Mack Pitts, the Georgia Court of Appeals held that the "exclusive remedy" provision of the Georgia Workers Compensation Act, section 34-9-11 of the Official Code of Georgia Annotated (O.C.G.A.),5 did not bar the plaintiffs from seeking damages for "breach of the contract" against the defendants who otherwise would have been considered "statutory" employers immune from suit for damages for a workplace accident and
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a resulting injury (in this case death).6 To reach this decision, the court concluded the injury for which the plaintiffs sought damages "is not a physical injury but instead is the loss of access to insurance coverage occasioned by the defendants' alleged breach of contract."7 The plaintiffs already had recovered the specified relief under the Workers' Compensation Act8 for this worksite injury and, in a separate action, sought and obtained a judgment against the third party that caused the accident for damages based on the death resulting from the physical injuries sustained in a job site accident.9 However, the court of appeals reasoned that because the plaintiffs' claim purportedly sought "damages for breach of contract, not personal injury, . . . the Workers' Compensation Act provide[d] no specific remedy for the damages sought."10 Accordingly, the court concluded that the Act is not applicable to a "breach of contract" action, thus the claim was not barred by the Act's exclusive remedy provision.11
Attempting to address concerns regarding the perceived erosion of the exclusive remedy doctrine in the aftermath of this decision, O.C.G.A. § 34-9-1112 was amended to emphasize that the Workers' Compensation Act (the Act) granted rights and remedies to employees who shall "be in place of all other rights and remedies . . . at common law or otherwise, on account of [the] injury, loss of service, or death," unless the employer expressly agrees, "in writing, to specific additional rights and remedies."13 The amendment further clarified that "the use of contractual provisions generally relating to workplace safety . . . compliance with laws or regulations, or . . . relating to liability insurance requirements shall not be construed to create rights and remedies beyond those provided" in the Workers' Compensation Act.14 The maximum weekly benefit payable for temporary total disability was increased from $525 to $550,15 and the maximum weekly benefit payable for temporary partial disability was increased from $350 to $367.16
The legislation also amends the maximum benefit payable to a surviving spouse as a sole dependent at the time of death from $150,000
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to an indexed amount not to exceed 400 weeks at the maximum prevailing rate for temporary total disability.17 In addition, the bill moves the sunset date for the Subsequent Injury Trust Fund from 2020 to 2023 and transfers oversight at that time from the State Board of Workers' Compensation to the Department of Insurance.18
The claimant in Brasher v. U.S. Xpress Enterprises, Inc.,19 a long-haul truck driver, was injured while on the road and treated in a local emergency room. He reported the injury to his employer but allegedly was not provided with medical treatment or a list of a panel of treating physicians, so he continued to seek treatment occasionally with urgent care facilities on his own, receiving work restrictions. Less than a month after the accident, the employer offered suitable light duty work at another location and provided the claimant with a bus ticket to that location. The claimant remained at this job for five hours and then left, signing a form that he was declining the job for financial reasons. Following a hearing, the administrative law judge (ALJ) awarded income benefits from the date of the accident through the date the claimant presented to the light duty job. However, the ALJ declined further income benefits after that date due to the claimant's unjustified refusal to perform this work and assigned the claimant's former surgeon as his authorized treating physician (ATP). The Appellate Division of the State Board of Workers' Compensation (Appellate Division) adopted this decision, and the superior court affirmed the decision by operation of law.20
The court of appeals reversed the ATP appointment because there was no evidence that the employer posted or presented a panel of physicians to the claimant or otherwise facilitated his medical treatment.21 The court only affirmed the ALJ's awarding of income benefits up until the commencement of the light duty job, holding that the light duty work was appropriate and the claimant's refusal was not justified.22 In response to the claimant's argument that the long bus ride to the light duty job disrupted his life, the court noted that as a long-haul truck driver who traveled across the country, the claimant was accustomed to
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long periods away from home.23 The claimant's reliance on an urgent care work status note that ambiguously stated "no activity" did not compel a finding that he was entitled to ongoing income benefits.24 Finally, the court rejected the claimant's contention that his due process or equal protection rights were violated.25
In Chambers v. Monroe County Board of Commissioners,26 the court of appeals revisited the concept of idiopathic injuries. The claimant, a firefighter and emergency medical technician, returned to the fire station from a call and sat at a desk, completing paperwork and watching television. When her supervisor asked her to get up from the desk so that he could use it, she rose from her chair and heard a "pop" in her left knee.27 "The ALJ found the [knee] injury compensable on the basis that [the claimant] was required to be in the location where she was injured and was following her supervisor's orders;" however, the Appellate Division vacated and reversed the award because there was "no evidence that the [claimant] slipped, tripped, or fell or came in contact with any object or hazard that increased her risk of injury . . . she simply rose from a seated position."28 The superior court affirmed.29
The court of appeals noted that the claimant presented no testimony or evidence that established any causal connection between the employment and the injury (such as a unique desk configuration, a fire alarm causing her to hurriedly exit the chair, or any contact with another object).30 The court noted prior decisions addressing this issue, including the two 2009 decisions, St. Joseph's Hospital v. Ward31 and Harris v. Peach County Board of Commissioners,32 and the court stated that the issue may be reconciled through the common strand of the appellate courts giving great deference to the ALJ's and Appellate Division's fact-finding role.33 Because some evidence existed to support the Appellate Division's determination that the injury was not causally
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connected to the employment, the court upheld the Appellate Division's award that denied the claim.34
This survey period featured another foray into the distinction between a change in condition and a fictional new accident. The claimant in ABF Freight System, Inc. v. Presley35 sustained a compensable right knee injury in June 2009, underwent surgery, and returned to work, and subsequently sustained a compensable left knee injury in December 2009 that he also underwent surgery for prior to returning to work. After more than a year of performing regular duty work, he underwent total knee replacement surgery on the right knee and sought income benefits during the period he was out of work after the procedure on the grounds that he sustained a fictional new injury.36
The ALJ determined that the claimant instead had sustained a change in condition for the worse because there were no new or different circumstances concerning his job duties that caused a new injury since the compensable 2009 injury. The Appellate Division adopted this decision.37 "The superior court remanded . . . for a determination regarding whether [the claimant's] left knee injuries constitute[d] 'new circumstances' that caused a worsening of the right knee. . . ."38 However, the court of appeals noted that "the ALJ and the [Appellate Division] did consider whether [the] left knee injuries caused a worsening of [the] right knee condition," and they found that the injuries did not and "the evidence support[ed] the ALJ and [Appellate Division's conclusion] that [the] right knee was never the same after surgery and [progressively worsened] without any additional injuries or job [duties]."39 Because evidence existed to support the Appellate Division's findings, the Appellate Division's findings must be affirmed.40
Revisiting and reversing a case from last year's survey, the Georgia Supreme Court held, in Metropolitan Atlanta Rapid Transit Authority v. Reid,41 that the provision in O.C.G.A. § 34-9-104(b)42 that contained
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the change in condition statute of limitations is "the proper statute of limitations for a claim of statutory penalties for late benefits payments."43...
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