Workers' Compensation - H. Michael Bagley, Daniel C. Kniffen, and Katherine D. Dixon

• Publication year: 2008

Workers' Compensationby H. Michael Bagley^*

Daniel C. Kniffen^** and Katherine D. Dixon^***

The Georgia General Assembly made no substantive changes to the Workers' Compensation Act¹ in 2008. Additionally, the Georgia appellate courts took relatively few cases on appeal, and most of these addressed areas of law that are already well-established. Because many workers' compensation cases now require practitioners to address the Medicare Secondary Payer Act,² the history, impact, and involvement of that legislation on Georgia claims is also addressed in this Article.

I. Exclusive Remedy

There were two cases decided by the Georgia Court of Appeals during the survey period addressing the exclusive remedy provision of the Workers' Compensation Act,³ and in both, the exclusive remedy was upheld.

McLeod v. Blase⁴ involved the application of the exclusive remedy to co-employees who render medical care. A professional basketball player for the Atlanta Hawks, Roshown McLeod, filed a professional malprac- tice action against Walter Blase, a certified athletic trainer, employed by the Atlanta Hawks in the sports medicine department. It is important to note that the trial court found that Blase was McLeod's co-employee. McLeod alleged that he was injured while playing for the Hawks in July of 2000, Blase negligently treated his injury, and as a result, McLeod's otherwise-treatable injury became permanent and rendered him disabled from playing professional basketball.⁵

McLeod attempted to avoid the exclusive remedy doctrine by arguing that actions for professional malpractice are generally excepted from the exclusive remedy provision of the Act. Rejecting McLeod's contention, the trial court held that the exception for professional malpractice was applicable only to physician co-employees sued for medical malpractice. Consequently, the court ruled that Blase was entitled to immunity from McLeod's tort claim under the exclusive remedy provision of the Workers' Compensation Act and granted Blase summary judgment. McLeod appealed.⁶

The exclusive remedy provision of the Act precludes an injured employee from bringing a tort action against the employer as well as any co-employees of the same employer.⁷ However, it does not prevent the employee from bringing a tort action against any third party tortfeasor.⁸ The Georgia Supreme Court recognized an exception to the immunity of co-employees in Downey v. Bexley? There, the court held that a professional co-employee may be held liable in tort for his wrongdoing to an injured employee when the co-employee is charged with fraud, deceit, and violation of professional trust.¹⁰ The court reasoned that professional persons owe a unique duty to others, as opposed to an individual who works in a purely commercial enterprise.¹¹ The supreme court recognized another exception to the immunity of co-employees in Davis v. Stover.¹² There, the court held that because of the relationship of trust between physicians and patients, company physicians cannot use the Act to insulate themselves from individual liability for medical malpractice claims.¹³

The court of appeals in McLeod held that the trial court correctly granted the defendant's motion for summary judgment because the

Downey and Davis exceptions to co-employee tort immunity under the Act did not apply to actions against certified athletic trainers.¹⁴ The court noted that although language in those two cases suggested that the exception to the co-employee immunity could apply to other professionals besides physicians, the exception had thus far only been applied when a medical malpractice action was brought against a company physi-cian.¹⁵ The court determined that there was no controlling authority for the premise that an employee could bring a medical malpractice action against a certified trainer, or any other professional, simply because that person was subject to the authority of a professional licensing board.¹⁶ Additionally, the court distinguished between physicians and certified trainers because certified trainers are not held to the same obligations of public interest and trust that override the duties of co-employees, as are physicians.¹⁷

In Coker v. Great American Insurance Co.,¹⁸ summary judgment was granted to an insurer on the grounds that it was immune from suit under the exclusive remedy provision because the insurer provided workers' compensation benefits to the employee through one of its wholly owned subsidiaries. While working for Mayo Company, Inc. (Mayo), Coker severed multiple fingers while using a shearing machine. Coker brought a tort action against Deep South Surplus of Georgia (Deep South) and Great American Insurance Company (Great American).¹⁹ Coker relied on the court of appeals' prior decision in his 2002 action against Deep South,²⁰ the company hired by American National to perform a safety inspection of Mayo's premises.²¹ In the 2002 case, Coker successfully appealed the trial court's grant of summary judgment to the defendant because Deep South was not Mayo's employer or the workers' compensation carrier of his employer.²²

In this case, however, Great American filed a motion for summary judgment claiming that it had tort immunity under the exclusive remedy provision of the Workers' Compensation Act. Great American contended that it provided workers' compensation benefits to Mayo through one of its wholly owned subsidiaries, American National Fire Insurance Company (American National). American National received premiums directly from Mayo and was directly liable for paying workers' compensation claims on their behalf. Summary judgment was granted to Great American, and Coker appealed.²³

Under Official Code of Georgia Annotated (O.C.G.A.) Sec. 34-9-1(3),²⁴ the term "insurer" is equated with the term "employer" to the extent that an insurer is considered the alter ego of the employer for purposes of immunity.²⁵ Accordingly, the court determined that while Deep South was not immune from tort liability, because it was merely a third-party capable of being sued, Great American was immune.²⁶ The basis for the differentiation was that National American was a wholly owned subsidiary of Great American, and Great American provided workers' compensation benefits to the plaintiff on behalf of his employer.²⁷ Under Georgia law, a parent corporation of a wholly owned subsidiary that is entitled to immunity under the Act is considered the subsidiary's alter ego and, therefore, shares in the immunity.²⁸ Accordingly, the court of appeals affirmed the trial court's grant of summary judgment.²⁹

II. Ingress and Egress

Champion v. Pilgrim's Pride Corp. of Delaware³⁰ also involved the exclusive remedy provision, but the primary concept that the Georgia Court of Appeals addressed was the doctrine of reasonable ingress and egress.³¹ The decedent was struck and killed by a tractor trailer operated by a co-employee of the defendant, Pilgrim's Pride, as he backed the vehicle into the receiving area. Whether the accident arose out of and in the course of the decedent's employment became a pivotal issue in determining the viability of the tort action.³²

The decedent was struck approximately seventy-eight minutes prior to her shift, and it was company policy that employees could not clock in more than thirty minutes before their shifts started. It was undisput- ed that the decedent only required ten minutes to prepare for her shift.³³

In the wrongful death suit filed by the decedent's daughter, Tlisa Champion (Champion), who was seeking damages upon claims of premises liability, negligence, negligence per se, and respondeat superior, the defendant filed a motion for summary judgment based on its contention that the claims were barred under the exclusive remedy provision of the Act. The motion for summary judgment was granted by the trial court.³⁴

On appeal, the defendant contended that the injury occurred within a reasonable time for ingress to the work station, because it would have taken the decedent at least five minutes to walk to her work station, and she was injured within three minutes of starting her walk.³⁵ The court of appeals held that when determining whether an employee is within the scope of employment in traveling to and from work, the period of employment includes a reasonable time for ingress and egress from the place of work, which is not defined as the amount of time necessary to reach the employee's work station but rather the length of time between the accident and the time the shift was scheduled to start.³⁶ Here, the injury occurred seventy-eight minutes prior to the start of the decedent's shift, which meant that the accident occurred forty-eight minutes before the decedent was allowed to clock in, per the defendant's policy.³⁷ The court of appeals reversed the grant of summary judgment and remanded based upon the conclusion that a jury question existed regarding whether the decedent was within the scope of employment at the time that she was on the employer's premises.³⁸

III. Temporary Aggravation of Pre-existing Condition

In Bibb County Board of Education v. Bembry,³⁹ Sandra Bembry, a sixth-grade teacher for the Bibb County Board of Education, was injured when she fell over some books at a work meeting. Bembry sought treatment with the authorized treating physician, Dr. Godlewski, who diagnosed her with multiple sprains of the lumbar spine and leg. The medical records indicated that Bembry had a pre-existing disc herniation condition for which she had received treatment from Dr. Wilson, her personal physician.⁴⁰

After treating Bembry approximately ten times, Dr. Godlewski opined that the muscular sprains Bembry suffered as a result of the work-related injury had resolved to at least her pre-injury baseline. Specifically, Dr. Godlewski testified that while a precise medical baseline could not be determined, he believed that the sprains caused by her injury were resolved. He explained that Bembry's...