Workers' Compensation
| Publication year | 2016 |
Workers' Compensation
H. Michael Bagley
J. Benson Ward
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The 2015 - 2016 survey period featured decisions of the appellate courts impacting the workers' compensation system on issues ranging from willful misconduct to statutes of limitations.1
The 2016 legislative session marked yet another in a long tradition of sessions heavy on amendments to the Workers' Compensation Act,2 almost exclusively the result of legislation proposed by the collaborative efforts of the State Board of Workers' Compensation's Legislative Advisory Council. House Bill 818 passed both houses and was signed into law by the Governor, with the changes becoming effective on July 1, 2016.3
The most notable amendments to the Act increase the maximum for temporary total disability (TTD) benefits from $500 to $575 per week,4 while also increasing the maximum for temporary partial disability benefits from $367 to $383 per week.5 Similarly, the maximum dependency benefit for a sole dependent surviving spouse was increased from $220,000 to $230,000.6
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The amended act removed any doubt that the State Board of Workers' Compensation has the discretion to deny self-insured status to an employer, making it clear that self-insured status is at the sole discretion of the board.7 The highlight of several related amendments regarding the Self-Insurer's Guarantee Trust Fund was that professional employer organizations (PEO) joined the list of entities deemed ineligible for self-insured status.8
Finally, the most notable administrative housekeeping measure was clarification that administrative law judges (ALJ) are subject to the Georgia Code of Judicial Conduct,9 tracking language already in place regarding the Appellate Division of the State Board of Workers' Compensation (Appellate Division).10
In Barnes v. Roseburg Forest Products Co.,11 the Georgia Court of Appeals addressed statute of limitations implications in a catastrophic claim. The claimant had a 1993 accident resulting in amputation of his left leg below the knee. The claim was accepted as "catastrophic," and he received TTD benefits. The claimant returned to light duty work for the employer in 1994 after he was fitted with a prosthetic leg, and TTD benefits were suspended. The claimant continued working through a change in ownership of the employer until he lost his job in a reduction in force in September 2009. He sought medical treatment for his knee in November 2009, and in December 2011, he was fitted for a new prosthetic leg. In August 2012, the claimant requested a hearing under the 1993 accident date seeking recommencement of TTD benefits in his catastrophic claim. In November 2012, the claimant filed a claim against the entity who bought the business from the 1993 employer, alleging a fictional new injury based on his last date worked: September 11, 2009.12
The ALJ for the State Board of Workers' Compensation denied both claims—the request under the 1993 catastrophic claim was denied as barred by the change of condition statute of limitations in Official Code of Georgia Annotated ( O.C.G.A.) section 34-9-104(b),13 and the one-year
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statute of limitations in O.C.G.A. § 34-9-8214 barred the 2009 fictional new injury claim.15 The Appellate Division affirmed, as did the superior court.16
The court of appeals disagreed as to both issues. With respect to the 1993 claim, the court held that the request for recommencement of TTD benefits in the catastrophic claim was not barred by the two-year statute of limitation in O.C.G.A. § 34-9-104(b).17 The court stated, "it is clear that the legislature intended to treat workers who received catastrophic injuries differently from workers who were less severely injured, allowing the former to receive benefits indefinitely so long as they remain cata-strophically injured."18 As to the claimed fictional new injury in 2009, the court held that O.C.G.A. § 34-9-82's one-year statute of limitation was tolled by the December 2011 medical treatment.19
It should be noted that, subsequently to the survey period covered in this Article, the Georgia Supreme Court reversed the court of appeals on both issues.20
In Bell v. Gilder Timber Co.,21 the claimant sustained a compensable injury in 1992, thereafter undergoing cervical fusion surgery and receiving TTD benefits until he returned to work. The claimant was not assigned a permanent partial impairment rating following his surgery or upon his return to work. He continued working until 2009 when he retired, but during that time period he continued to receive medical treatment, including a second surgery. Following the second surgery, the claimant's doctor assigned a permanent partial impairment rating of 15% to the body as a whole, and the claimant requested corresponding permanent partial disability (PPD) benefits. The ALJ denied the request for PPD benefits, as it was barred under O.C.G.A. § 34-9-104(b)'s statute of limitation because the request came more than four years after the claimant was last paid income benefits.22 The Appellate Division and the superior court both affirmed.23
On appeal, the claimant argued that the court should create an exception to O.C.G.A. § 34-9-104(b)'s four-year statute of limitations on PPD
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benefits. He argued that application of the statute would create a harsh and inequitable result for an employee who returned to work following a compensable claim.24 While the court of appeals agreed that applying the statute to the claimant's case would result in "a harsh and inequitable result," the court did not agree that such an outcome justified creating a judicial exception to the statute of limitations.25 The wording of the statute is clear and unambiguous, and accordingly the court followed the plain and ordinary meaning and declined to engraft onto the statute any exception, deferring instead to the Georgia General Assembly to contemplate any revision to the statute.26
In Burdette v. Chandler Telecom, LLC,27 the claimant was a cell tower technician who—notwithstanding explicit instructions to the contrary from his supervisor and lead hand—descended a cell tower by "controlled descent," more akin to rappelling than to climbing down. The claimant was injured during his controlled descent when he fell. The ALJ found that the claimant was barred from recovering workers' compensation benefits because he engaged in "willful misconduct" within the meaning of O.C.G.A. § 34-9-17(a)28 in defying his supervisor's instruction to climb down the tower instead of using controlled descent.29 The Appellate Division affirmed and adopted the ALJ's findings, and the decision was affirmed by operation of law on appeal to the superior court.30
The court of appeals noted that O.C.G.A. § 34-9-1731 does not define "willful misconduct," and that the Georgia Supreme Court has stated that willful misconduct "involves conduct of a quasi-criminal nature, 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."32 The court held that, while the claimant deliberately violated a work rule and his supervisor's express instructions and instead engaged in a hazardous act, disregarding a work rule was not
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conduct of a quasi-criminal nature, and thus the denial of benefits was improper.33
During this Survey period, the court of appeals again dealt with the distinction between idiopathic injuries and those that arise out of employment. In Sturgess v. OA Logistics Services, Inc.,34 the court analyzed this issue in the context of a tort suit and thus there was an exclusive remedy issue to address. The deceased employee in Sturgess drove a forklift at a warehouse operated by OA Logistics Services (OA). When his forklift ran out of fuel, he went to an office area to ask about refueling and waited outside the office for a supervisor. While the deceased employee waited outside the office with his back turned, a coworker entered the office and forcibly attempted to kiss a female employee in the office who pushed him off. The coworker walked out of the office, produced a hand gun, shot the deceased employee in the back of the head, re-entered the office, and sexually assaulted the female employee. The deceased employee, who was a family friend of the female employee, had not been aware of the assault, had not attempted to intervene, and had not interacted with the shooter before that occasion. The mother of the deceased employee filed a civil suit against the shooter, OA, and the staffing agency who placed workers at OA's warehouse, among others.35
OA and the staffing agency moved for summary judgment on the ground that the exclusive remedy provision of the Workers' Compensation Act bars the tort claims. The trial court granted summary judgment on that ground, and the plaintiff appealed to the court of appeals.36
Under O.C.G.A. § 34-9-11(a),37 the Act provides the exclusive remedy for injuries arising out of and in the course of employment. An assault on an employee is compensable under the Act where the attack is not directed solely for reasons personal to the employee, which again involves the analysis of whether the injuries arose out of and in the course of the employment.38 As it was undisputed that the death occurred in the course of the employment, the court looked to whether the accident causing the death arose out of the employment.39
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Citing a recent 2013 court of appeals decision, the court noted that an accident arises out of the employment when there is a causal connection between the conditions under which the employee worked and the injury, and when the accident results from a risk reasonably incident to the employment:
[I]f the injury...
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