Workers' Compensation
| Publication year | 2017 |
Workers' Compensation
H. Michael Bagley
J. Benson Ward
[Page 357]
The 2016-2017 survey period was relatively quiet for workers' compensation developments, but the workers' compensation system was nonetheless impacted by appellate decisions during this period. Such decisions involve issues ranging from statutes of limitations to willful misconduct, including two decisions from the Georgia Supreme Court reversing cases featured in last year's survey.1
There were no legislative changes of major significance during the survey period.
In Roseburg Forest Products Co. v. Barnes,2 the Georgia Supreme Court reversed the Georgia Court of Appeals' 2015 decision in Barnes v. Roseburg Forest Products Co.3 on multiple statute of limitations issues.4 The case arose out of a 1993 accident that resulted in a below-the-knee amputation of the claimant's left leg. The claimant was an employee of Georgia-Pacific, which Georgia Conversion Primary Insurance Company insured. Georgia Conversion accepted his claim as "catastrophic," and he
[Page 358]
received temporary total disability (TTD) benefits. After being fitted with a prosthetic leg, he returned to light-duty work at Georgia-Pacific in 1994 and, at that time, his TTD benefits were suspended.5
The claimant continued working at the plant after Georgia-Pacific sold it to Roseburg Forest Products Company until he lost his job during a force reduction in September 2009. He subsequently sought medical treatment for his knee in November 2009 and, in December 2011, he was fitted for a new prosthetic leg. That medical treatment was paid for by the servicing agent for Georgia Conversion.6
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 Roseburg Forest Products Company alleging a fictional new injury based on his last date worked, September 11, 2009. The Administrative Law Judge (ALJ) held a hearing and denied both claims. The ALJ denied the request to resume the TTD benefits under the 1993 catastrophic claim as barred by the change of condition statute of limitation in section 34-9-104(b)7 of the Official Code of Georgia Annotated (O.C.G.A), and denied the 2009 fictional new injury claim as barred under the one-year statute of limitation contained in O.C.G.A. § 34-9-82.8 The appellate division of the State Board of Workers' Compensation (Board) affirmed, as did the Dooly County Superior Court.9
The court of appeals reversed on both issues. The court held that the request for recommencement of TTD benefits in the 1993 catastrophic claim was not barred by the two-year statute of limitations in O.C.G.A. § 34-9-1040(b). Further, the court held that the one-year statute of limitations governing the 2009 fictional injury was tolled by the December 2011 medical treatment.10
First, the supreme court addressed the application of the change of condition statute of limitation to the 1993 claim pursuant to O.C.G.A. § 34-9-1040(b), and held that the claimant's request for additional TTD benefits was time-barred.11 The court held that the change of condition statute of limitations applies equally to claims designated as catastrophic as to non-catastrophic claims; a claimant has two years from the last
[Page 359]
payment of income benefits to file a request for additional TTD benefits.12 The fact the injury was designated catastrophic did not create an exception to the wording of the statute.13 While claimants with a catastrophic injury such as Barnes have a right to receive weekly TTD benefits until they experience a change in condition for the better, "OCGA § 34-9-104(b) makes clear that, in order for Barnes to enforce that right, he must make a claim for those benefits within two years of the last weekly TTD benefit payment made to him by his employer."14 Because the claimant waited longer than two years before filing a claim to enforce his right to resume TTD benefits under the 1993 accident, the statute of limitations barred his request.15
Further, the supreme court held that the 2009 fictional new injury was similarly time-barred because the claimant did not file a WC-14 Notice of Claim for the 2009 injury until November 2012, more than three years after the date of the accident.16 The court determined that, under O.C.G.A. § 34-9-82(a),17 the claimant's November 13, 2009 medical treatment would have extended the period for him to file his claim for a year from that date.18 However, the claimant did not file his notice of claim within that one-year period, and accordingly, his 2009 claim became time-barred as of November 14, 2010, pursuant to O.C.G.A. § 34-9-82(a).19 The court held that the claimant's medical treatment in 2011 could not revive his already time-barred claim.20 In doing so, the supreme court rejected the framework that the court of appeals holding established—a framework in which an injured worker could revive a stale claim at any time by obtaining further medical treatment—as such a result "would essentially render the one-year statute of limitation of OCGA § 34-9-82(a) meaningless."21
[Page 360]
Chandler Telecom, LLC v. Burdette22 similarly saw the Georgia Supreme Court reverse the Georgia Court of Appeals.23 The claimant in Chandler Telecom was hired to work as a cell tower technician, worked for three weeks, was fired while on a five-week leave of absence, and was rehired almost immediately. On his first day back on the job, the claimant was working on the top of a cell tower when—despite express instructions from his supervisor and lead hand to climb down the cell tower—he descended a cell tower by controlled descent, akin to rappelling, instead of climbing down the tower. During his controlled descent, the claimant fell a great distance and sustained injuries to his ankle, leg, and hip.24
The ALJ denied the claimant's request for workers' compensation benefits, finding that O.C.G.A. § 34-9-17(a)25 barred the claimant from recovering workers' compensation benefits because he engaged in "willful misconduct" when he defied his supervisor's instructions by using controlled descent to climb down the tower.26 The appellate division affirmed and adopted the ALJ's findings, and the decision was affirmed by operation of law on appeal to the Putnam County Superior Court.27
The court of appeals reversed, concluding that the claimant's actions did not constitute willful misconduct under O.C.G.A. § 34-9-17(a).28 Citing a supreme court decision from almost a century ago, Aetna Life Insurance Co. v. Carroll,29 the court of appeals ruled that the claimant's actions and violation of his supervisor's orders were not behavior of a "quasi criminal nature involving 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."30 Thus, though the claimant may have deliberately violated both a work rule and his supervisor's express instructions, and instead engaged in hazardous behavior, such action was not conduct of a quasi-criminal nature, and denial of the claim was therefore improper.31
[Page 361]
The supreme court disagreed with the standard applied by the court of appeals and reversed.32 The court first determined the statutory framework of O.C.G.A. § 34-9-17,33 noting that the list of actions that willful misconduct includes—such as intentional self-inflicted injuries, injuries growing out of the employee's attempt to injure another person, or injuries due to the employee's willful failure or refusal to use a safety appliance, or perform a duty required by statute—is a non-exhaustive list of acts constituting willful misconduct, and other acts not enumerated in the text of the statute may also constitute willful misconduct.34 As the statute does not define the scope of willful misconduct, the decision in Carroll confirmed that willful misconduct requires more than mere negligence.35 Further, it provided the requisite mental state of an employee whose actions constituted willful misconduct is an intentional and deliberate act performed either with knowledge that the act is likely to result in serious injury, or with a wanton and reckless disregard of the probable consequences of the act.36 The court further determined that a 1993 court of appeals decision, Wilbro v. Mossman37 which held that the action must be criminal or quasi-criminal in nature to constitute willful misconduct, misinterpreted Georgia law.38
In explaining the court's reasoning on evaluating willful misconduct under O.C.G.A. § 34-9-17, the supreme court determined that an employee's violation of an employer's instructions or performance of a hazardous act, where the danger is obvious, does not alone rise to the level of willful misconduct.39 However, when the employee knowingly violates an employer's rule and performs an obviously dangerous, hazardous act, and the finder of fact further determines that the employee's act was done either with the knowledge that it was likely to result in serious injury, or with a wanton and reckless disregard of its probable injurious consequences, then compensation will be barred.40 The court noted that Wilbro was wrong to the extent the court held that the intentional violation of employer rules can never constitute willful misconduct, even when the violation involves knowingly doing a
[Page 362]
hazardous act in which the danger is obvious.41 Similarly, it is not willful misconduct whenever an employee intentionally violates an employer's rule; rather, the standard is whether the act was done either with the knowledge that it was likely to result in serious injury, or with the wanton and reckless disregard of its probable consequences.42
The supreme court remanded the case for the...
To continue reading
Request your trial