Workers' Compensation
| Publication year | 2014 |
Workers' Compensation
H. Michael Bagley
J. Benson Ward
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While there was no legislation impacting the Workers' Compensation Act during the 2013-2014 survey period,1 the period featured notable decisions of the appellate courts involving core issues of the Act, including notice, average weekly wage, return to work, and change in condition.
In Zheng v. New Grand Buffet, Inc.,2 the Georgia Court of Appeals considered whether an employee may unilaterally change doctors-to a doctor not on the panel of physicians-when the employer continues to provide medical care and also addressed the timing for which an appeal must be filed with the superior court.3 The claimant sustained an injury and began receiving medical care and income benefits. The claimant's authorized treating physician (ATP) issued a prospective full-duty work release as of one week of the appointment, depending on test results and a return evaluation. But instead of returning to the ATP as scheduled, the claimant presented to a doctor of her own choosing with whom she continued treatment. The employer subsequently suspended income benefits on the grounds that the claimant underwent a change in condition for the better, pursuant to the prospective regular-duty work release from the claimant's ATP. The claimant filed a hearing request
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seeking, among other things, reinstatement of income benefits, payment of certain medical expenses, and a change of ATPs.4
The administrative law judge (ALJ) found that the employer's suspension of benefits was not improper, but reinstated benefits beginning shortly after the suspension date on the grounds that the employer did not prove the claimant had undergone a change in condition for the better. The claimant alleged that the insurance adjuster had represented that no panel of physicians existed, and so she was free to select any doctor of her choice as the ATP. However, the ALJ found that the employer had a valid panel of physicians and therefore should have the opportunity to offer the claimant treatment with another doctor of the employer's choice. The Appellate Division of the State Board of Workers' Compensation (the Appellate Division) adopted the ALJ's award, and the superior court did not issue an opinion within twenty days of the hearing. Thus, the decision of the State Board of Workers' Compensation (the Board) was affirmed by operation of law.5
The court of appeals found no error in the ALJ's findings, noting evidence existed to show that a valid panel of physicians was posted and explained to the claimant.6 The court noted that the claimant's remedy, if she was dissatisfied with her ATP, was either to request a change of doctors with the employer or "petition the Board for approval to change, but [the claimant] was not entitled to change physicians unilaterally and require her employer to pay for it."7 The court refused to consider the employer's purported cross-appeal, holding that section 34-9-105(b) of the Official Code of Georgia Annotated (O.C.G.A.)8 requires a party to appeal the Board's final order within twenty days of that order and does not provide additional time for a cross-appeal.9 Because the employer did not file a notice of appeal to the superior court within twenty days of the Appellate Division award, the court of appeals lacked jurisdiction to consider the appeal.10
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Garcia v. Shaw Industries, Inc.11 involved a claimant's civil suit against an employer for intentional infliction of emotional distress and defamation after the employer filed an administrative fraud complaint with the Board. The claimant, who was not a United States citizen, obtained employment with the name and Social Security number of another. While working for the employer, she sustained a compensable injury and began receiving benefits. After obtaining deposition testimony from the claimant that the name and Social Security number she had used were not hers, the employer fired her. The employer continued to pay temporary partial disability (TPD) benefits but filed a complaint with the fraud and compliance unit of the Board, alleging that the claimant made false and misleading representations for the purpose of obtaining workers' compensation benefits. Following communications between the fraud unit and counsel for the employer, the claimant was arrested after a deposition.12
The claimant brought a claim for intentional infliction of emotional distress and defamation.13 The employer argued that its actions in filing the fraud complaint were protected from liability under O.C.G.A. § 34-9-24,14 which "provides a safe harbor for persons who '[i]n the absence of fraud or malice' furnish the Board with information regarding suspected fraud."15
Declining to rule on whether the statute protected the employer from liability, the court of appeals held that the trial court correctly granted summary judgment because a rational jury could not reasonably conclude that the employer's conduct was extreme and outrageous as required for a claim of intentional infliction of emotional distress.16 The defamation claim was barred by the one-year statute of limitations.17
In Reid v. Metropolitan Atlanta Rapid Transit Authority,18 the court of appeals addressed a claimant's request for late-payment penalties
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made more than eight years after the last payment of indemnity benefits.19 The claimant sustained a compensable injury and received a total of thirty-two indemnity payments, of which twelve were made untimely, before returning to work.20 When, eight years later, the claimant requested payment by the employer of the 15% late-payment penalty under O.C.G.A. § 34-9-221(e),21 the employer refused and the claimant requested a hearing.22 Following stipulated facts, the ALJ found that the claim for statutory penalties constituted a change in condition under O.C.G.A. § 34-9-10423 because additional benefits were requested, and the claim was therefore barred under that statute's two-year limitation period. This decision was affirmed by the Appellate Division and the superior court.24
The court of appeals reversed and applied the general statute of limitations, O.C.G.A. § 34-9-82,25 instead of the change of condition statute of limitations.26 The court noted that O.C.G.A. § 34-9-104(a) defines the term "change in condition" to be "a change in the wage-earning capacity, physical condition, or status of an employee," and then stated that the claimant was not alleging physical or economic change—though curiously the court ignored O.C.G.A. § 34-9-104(a)'s third prong, "a change in . . . status."27 Instead, the court held that the applicable statute of limitations was the one contained in O.C.G.A. § 34-9-82, and thus as long as the initial claim for benefits was filed in a timely fashion, a claimant is not time-barred from requesting "payment of compensation which accrued and is owed."28 The court noted that "some may view [its holding] as absurd," and intimated that the legislature should fix what the court perceived as a statutory deficiency.29 The Georgia Supreme Court granted certiorari and, in September 2014, reversed the court of appeals.30
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For the third consecutive year, this survey addresses the Pitts matter.31 During this survey period, in Estate of Pitts v. City of Atlanta (Pitts III),32 the court of appeals revisited the case upon remand from the supreme court.33 The Pitts matter arose when a construction worker was struck and killed by a vehicle driven by the employee of another subcontractor on the project. The decedent's estate recovered a judgment against the subcontractor who employed the vehicle's driver, 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 grounds that the companies breached contractual duties in their subcontracts that required each subcontractor to carry a minimum amount in automobile liability insurance.34 On remand, following an extended analysis and construction of the Owner's Controlled Insurance Policy and relevant terms, the court of appeals again concluded that the deceased employee was a "participant" in the construction project intending to benefit from the coverages provided by the master insurance program set forth in the Owner's Controlled Insurance Policy.35
Turning to the question of whether the exclusive remedy provision barred the estate's claims, the court referred to and upheld its analysis from Estate of Pitts v. City of Atlanta (Pitts I),36 wherein the court concluded that the exclusive remedy provision did not apply to bar the estate from bringing suit against the subcontractor responsible for the accident because that subcontractor was not an employee of the worker's employer nor a party to any contract under which it provided workers' compensation benefits to the worker, and because the injury for which the estate sought damages was not a physical injury but rather the loss of access to insurance coverage due to the alleged breach of contract.37
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In Dawson v. Wal-Mart Stores, Inc.,38 the court of appeals addressed whether the Workers' Compensation Act (the Act)39 covered an employee who was kidnapped and physically and sexually assaulted while walking across the employer's parking lot to begin her shift.40 The employee brought a personal injury suit against the employer that was dismissed on the employer's motion for summary judgment.41 The court of appeals affirmed, concluding that the exclusive-remedy provision barred the civil suit.42 The court observed that the issue regarding whether assaults are subject to the exclusive-remedy provision-specifically whether the assault arose out of the employment-is fact specific.43 As a...
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