Workers' Compensation

• Publication year: 2022

Workers' Compensation

H. Michael Bagley

J. Benson Ward

[Page 299]

Workers' Compensation

H. Michael Bagley^*

J. Benson Ward^**

I. Legislation

The Survey period featured limited legislation.¹ House Bill 1409² increased the maximum rate of temporary total disability benefits from $675 to $725 and increased the maximum rate of temporary partial disability benefits from $450 to $483.³ Similarly, the maximum amount of death benefits payable to a sole surviving spouse was increased correspondingly from $270,000 to $290,000.⁴

While not an amendment directly to the Workers' Compensation Act (the Act),⁵ it is noteworthy that House Bill 389⁶ amends the definition of "employment" applicable to the "Employment Security Law."⁷ This definition now includes services performed for wages unless the Department of Labor makes a contrary determination based upon evidence that such individual has been, and will continue to be, free from control or direction over the performance of such services, including a list

[Page 300]

of characteristics to consider in making the determination of employment.⁸

II. Statute of Limitations for Catastrophic Request

The case of Sunbelt Plastic Extrusions, Inc. v. Paguia⁹ dealt with the timing of an employer/insurer's last payment of income benefits and whether a claimant timely requested designation of her injury as "catastrophic" or whether her request was barred by the statute of limitations.¹⁰

The claimant incurred a compensable injury on March 31, 2009, and received 400 weeks of income benefits, with the 400 weeks ending on November 29, 2016.¹¹ On November 20, 2018, the claimant filed a form with the Georgia Board of Workers' Compensation requesting that her injury be deemed catastrophic. The employer/insurer countered that the claimant's request for catastrophic designation and additional income benefit payments was barred by the two-year statute of limitations contained in Official Code of Georgia Annotated section 34-9-104(b),¹² arguing that it had mailed the last payment of income benefits to the claimant more than two years before November 20, 2018. At a hearing, the Administrative Law Judge rejected the employer/insurer's statute of limitations defense and found the claimant's injury was catastrophic, and the Appellate Division of the State Board of Workers' Compensation (Appellate Division) affirmed, as did the Houston County Superior Court.¹³

The Georgia Court of Appeals addressed the employer/insurer's argument that the claimant's request was barred because the last income benefit payment was actually made more than two years before the claimant filed the request at issue.¹⁴ O.C.G.A. § 34-9-104(b) provides a two-year statute of limitations for a claimant to seek additional workers' compensation benefits due to a change in condition, and the claimant's request for catastrophic designation is a request for a change in condition.¹⁵ Claims for additional income benefits are time-barred if not

[Page 301]

brought within two years of that cessation date.¹⁶ The court deferred to the Appellate Division's determination that a payment is "actually made" under O.C.G.A. § 34-9-104(b) when it is mailed to the recipient.¹⁷ Therefore, the court's inquiry focused on whether the employer/insurer proved that it mailed the last payment of income benefits to the claimant more than two years before she filed her request for catastrophic designation on November 20, 2018.¹⁸

At the hearing before the Administrative Law Judge, the employer/insurer presented the testimony of the claims adjuster as to the general procedure and steps she followed in mailing income benefit checks to the claimant: she completed an instruction form for her administrative assistant to issue a check for the claimant's last two weeks of income benefits, and these forms prompted the administrative assistant to create a check that was printed in the office, and ordinarily, the checks were picked up for mailing each afternoon.¹⁹ The claims adjuster testified that she was not the person who created or mailed the checks, and that she did not know exactly when the administrative assistant created the check to the claimant or when the administrative assistant placed the check in the location from which the person from the post office picked it up, though the claims adjuster testified to her belief that the check was mailed on November 15, 2016—the date printed on the check.²⁰

Based on this evidence, the Appellate Division found testimony of the insurer's routine practice for issuing payments and found the claims adjuster completed the claims payment authorization form for the claimant on November 14, 2016, a check was printed, and it was picked up for mailing.²¹ However, the Appellate Division further held that the employer/insurer did not present evidence about the time that elapsed between the various steps. It did not prove its contention of a one-day interval between the completion of the form and the mailing of the check, as there was (1) no evidence that a one-day interval was part of the insurer's routine practice; (2) no evidence as to the time that passed between the administrative assistant's receipt of the claims payment authorization form and the creation of the check in the computer system; and (3) no evidence of the length of time between the creation of the check

[Page 302]

and the printing of the check. The Appellate Division determined that there was insufficient evidence to determine when the check was mailed, other than some time after November 14, 2016, and thus the employer/insurer did not present sufficient evidence to meet its burden of proving its affirmative defense.²²

Before the court of appeals, the employer/insurer argued that it was erroneously required to present evidence of a mailing receipt to prove the date of mailing, even though O.C.G.A. § 34-9-104(b) imposes no such requirement.²³ However, the court of appeals disagreed and noted that the Appellate Division acknowledged that evidence of an insurer's routine practice regarding the issuance and mailing of checks can be used to prove how and when a specific check was mailed, only in this case the employer/insurer failed to meet its burden of proof because it did not introduce evidence of the time between each step of its routine practice in creating and mailing checks.²⁴ Because some evidence supported the Appellate Division's findings, the court held that the employer/insurer failed to prove its statute of limitation defense by a preponderance of the evidence.²⁵

The court then addressed the claimant's argument that it overrule the holding in Lane v. Williams Plant Services,²⁶ that a payment is "actually made" under O.C.G.A. § 34-9-104(b) when it is mailed to the recipient.²⁷ Rather, the claimant argued that the statute of limitations in O.C.G.A. § 34-9-104(b) should begin to run on the date benefits are suspended as shown in the WC-2 form filed with the State Board, as opposed to the date the check is mailed. The claimant contended that the current interpretation of the statute is unconstitutional because it deprives claimants of notice in violation of the Equal Protection and Due Process Clauses of the Georgia and United States Constitutions and that from a practical standpoint, this interpretation grants employer/insurers control over the statute of limitations based on when the employer mails the last payment of benefits.²⁸

The court observed that the present case demonstrated that the rule in Lane can be problematic in practice, as there can be uncertainties in confirming when a payment was mailed, and the purpose of statutes of limitation are ill-served when the date a limitation period began to run

[Page 303]

becomes a litigated question of fact.²⁹ The court also suggested that the rule in Lane could be subject to manipulation where an employer/insurer combines the last two weekly payments to shorten the limitation period.³⁰ Nonetheless, the court declined to reconsider Lane under principles of judicial restraint, as it was unnecessary to overrule that prior decision to decide the pending case, and left the matter as one to be considered by the General Assembly.³¹

III. Death and Dependency Benefits

In Baxter v. Tracie McCormick, Inc.,³² an employees surviving spouse sought to avoid the statutory cap on death benefits by arguing that her deceased mother-in-law was a partial dependent.³³ The deceased employee died in a work-related accident in 2012 and left behind a wife but no minor children and no other potential dependents. Accordingly, after his widow filed a claim for workers' compensation benefits, she began receiving full benefits pursuant to O.C.G.A. § 34-9-13(c).³⁴ After the employer/insurer paid the statutory maximum of $150,000 in death benefits to a sole surviving spouse under O.C.G.A. § 34-9-265(d),³⁵ it suspended her benefits in 2018. The widow requested a hearing with the State Board, arguing that O.C.G.A. § 34-9-265(d)'s cap on death benefits did not apply to her because she was not the sole dependent on the date of accident, as the deceased employee's mother was a partial dependent. The widow's mother-in-law had never brought a claim for death benefits before she passed away in 2017. The Administrative Law Judge found that the widow's mother-in-law was a partial dependent of the deceased employee, but never qualified as a dependent during her lifetime; the Appellate Division affirmed, as did the Fulton County Superior Court.³⁶

The Georgia Court of Appeals observed that the widow, as the surviving spouse, was presumed under O.C.G.A. § 34-9-13(b)(1)³⁷ to be wholly dependent on the deceased employee, and under O.C.G.A. § 34-9-13(d)³⁸ when there is a whole dependent, then partial dependents

[Page 304]

cannot recover benefits.³⁹ Consequently, the mother-in-law was never eligible to receive benefits.⁴⁰ The mother-in-law had not qualified as a dependent while alive and had not made a claim for any benefits while alive.⁴¹ The court of...