Workers' Compensation
| Publication year | 2012 |
Workers' Compensation
H. Michael Bagley
J. Benson Ward
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The 2011-2012 survey period1 featured decisions of the appellate courts in areas ranging from medical privacy to diligent job searches, with only minor legislation impacting the Workers' Compensation Act.2
The legislative changes3 enacted by the Georgia General Assembly impacting the Workers' Compensation Act were relatively minimal. The Act provides for a twenty percent penalty for income benefits paid under the terms of an award ot settlement that are not paid within twenty days of becoming due, and section 34-9-221(f) of the Official Code of Georgia Annotated (O.C.G.A.)4 was modified to allow the board to excuse failure to make timely payment if the failure is "due to conditions beyond the control of the employer."5
In order to facilitate the use of offsets in settlement documents, O.C.G.A. § 34-9-15(c)6 was modified to allow either the board or "any party to the settlement agreement [to] require that the settlement
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documents contain language which prorates the lump sum settlement over the life expectancy of the injured wofker."7
Changes were made to the Workers' Compensation Act (specifically to O.C.G.A. § 34-9-226)8 that relate to the appointment of a guardian or conservator for a minor or incompetent claimant, including the modification of O.C.G.A. § 34-9-226(a) to provide authority for appointment of "a conservator or the equivalent thereof duly appointed by a court of competent jurisdiction outside the State of Georgia."9 In addition, O.C.G.A. § 34-9-226(b) was modified to delete the word "temporary" and to eliminate the fifty-two week limit on any such board appointment of conservators for "administering workers' compensation rights and benefits" or for a guardian ad litem "to bring or defend an action under this chapter in the name of and for the benefit of said minor or legally incompetent person," and also increases to $100,000 the level at which the board loses authority to appoint a conservator for a minor or legally incompetent person for the purpose of settling that individual's workers' compensation claim.10 Furthermore, O.C.G.A. § 34-9-226(b)(2) was amended to clarify that there is no need to appoint a conservator "where the natural parent is the guardian of a minor and the settlement amount is less than $15,000.00," along with a new provision that "[a]fter settlement, the board shall retain the authority to resolve disputes regarding continuing representation of a board appointed conservator of a minor or legally incompetent person . . . ."11
A number of changes were made to O.C.G.A. § 34-9-264,12 which governs occupational loss of hearing caused by harmful noise.13 The code section was modified to allow consideration of hearing losses at a 3000 cycles per second level in addition to 500, 1000, and 2000 cycles per second levels, and to allow multiple other technical changes in the amount of decibels and frequencies used to measure the losses of hearing deemed to constitute a compensable hearing disability.14 It further adjusts the formula for measuring hearing impairment to allow for "each decibel of loss exceeding 25 decibels an allowance of 1 1/2 percent shall be made up to the maximum of 100 percent which is reached at 92 decibels."15
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The definition of "employee" contained in O.C.G.A. § 34-9-1(2)16 was revised to exclude "[individuals who are "parties to a franchise agreement as set out by the Federal Trade Commission franchise disclosure rule, 16 C.F.R. 436.1 through 436.11 . . . ."17
The Georgia Court of Appeals and Georgia Supreme Court addressed the impact and scope of the WC-205 board form this survey period. In Mulligan v. Selective HR Solutions, Inc.,18 the claimant initially injured her back at work in September 2005, received treatment, and returned to work in July 2006. In May 2007, she re-injured her back while at home. The authorized treating physician (ATP) determined that surgery was necessary and sent a WC-205 form to the employer/insurer (employer), requesting pre-authorization. More than one month later, the employer returned the form, refusing to authorize surgery absent a second opinion; three days later the ATP performed surgery.19
The administrative law judge (ALJ) denied the claim for benefits, holding that the employee had not shown a change in condition from her original injury, and that she had not proven the recent back surgery was compensable, and the board affirmed.20 The Superior Court of Bibb County, Georgia reversed with respect to the issue regarding pre-authorization of medical treatment pursuant to Rule 205,21 holding that the employer's failure to respond to the WC-205 form within five days automatically triggered the .obligation for the employer to pay for the medical care.22
Because the board's rule-making authority is limited, the court of appeals focused on whether a rule altering the burden of proof as to compensability in favor of the claimant is procedural or substantive, and it concluded that such a burden-shifting rule is substantive.23 The court concluded that, to the extent Rule 205 precludes the employer from contesting the compensability of treatment, the Rule is invalid as to substantive rule-making, which impermissibly shifts the claimant's burden to prove that an injury is work-related.24
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The Georgia Supreme Court disagreed with the court of appeals's opinion that the board had exceeded its rule-making authority.25 The supreme court held that the court of appeals considered Rule 205(b)(3Xa) in isolation and overlooked Rule 205(b)(l)(a)'s requirement that the medical treatment be paid in accordance with the Workers' Compensation Act (the Act) where the treatment or test was related to the on-the-job injury.26 In other words, a failure to timely respond to a WC-205 does not do away with the threshold requirement that the medical care be for a compensable injury.27 The supreme court agreed with the holding that evidence supported a ruling that the claimant did not sustain a second compensable injury, and so affirmed the decision on other grounds.28 The court also noted that failure to timely respond to a WC-205 may still subject the employer to penalties and fees.29
In McRae v. Arby's Restaurant Group,30 the Georgia Court of Appeals concluded that the Act does not compel a claimant to authorize her treating physician to talk to the employer's attorney ex parte in exchange for receiving benefits in a compensable claim.31 The claimant sustained a compensable injury, and during the course of her claim executed a WC-207 form, pursuant to O.C.G.A. § 34-9-207(b).32 Counsel for the employer attempted to schedule an ex parte consultation with the doctor. The doctor declined to meet with the attorney until he provided express permission from the claimant. Counsel filed a motion seeking an order from the ALJ authorizing the doctor to meet with the employer's attorney privately or else removing the claimant's hearing request. The ALJ granted the motion, and when the claimant refused to sign such a release, the ALJ removed the hearing from the calendar. The board and the Superior Court of Fulton County affirmed the decision.33
The majority opinion quoted extensively from the recent decision of Baker v. Wellstar Health Systems,34 which involved allegations of
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medical malpractice, stating that considerations of medical privacy exist in workers' compensation cases as well.35 The court stated that the Act does not require a physician to converse ex parte with opposing counsel, nor does the Act require a claimant to authorize the treating physician to converse ex parte with opposing counsel in exchange for continued receipt of benefits.36 The court thus held that the Act did not require the claimant to authorize the treating physician to communicate ex parte with counsel for the employer in order to maintain benefits, and reversed the superior court.37 The Georgia Supreme Court granted certiorari on April 24, 2012.
The Georgia Court of Appeals examined the "exclusive remedy" doctrine multiple times during the survey period. In Estate of Pitts v. City of Atlanta,38 a construction worker was struck and killed by a vehicle driven by the employee of another subcontractor on the project. The estate brought suit and recovered a judgment against the subcontractor whose employee drove the vehicle that struck the deceased worker, but the judgment was not satisfied because of a lack of insurance. The estate then brought suit against the city and several construction companies on the project on the grounds that the companies breached contractual duties in their subcontracts, which required that each subcontractor carry a minimum of $10 million in automobile liability insurance. The trial court granted summary judgment to the defendants, and the estate appealed.39
Among the arguments raised by the defendants was the exclusive remedy provision, which they contended barred the estate from seeking damages.40 The court of appeals noted that the exclusive remedy provision did not bar the estate from bringing suit against the subcontractor responsible for the accident because that subcontractor was neither an employee of the worker's employer nor a party to any contract under which it provided workers' compensation benefits to the worker.41 Because the injury for which the estate sought damages in the present matter was not a physical injury but rather the loss of access to insurance coverage due to the alleged breach of contract, the court found
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that the exclusive remedy provision did not apply.42 While O.C.G.A. § 34-9-11.143 presumably would have barred a claim for personal injury, it did not bar the claim for breach of contract.44
In Vratsinas Construction Co. v. Chitwood,45...
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