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

• Publication year: 2003

Workers' Compensationby H. Michael Bagley*

Daniel C. Kniffen^**

Katherine D. Dixon^*** and

Marion H. Martin^****

I. Legislation

The 2003 Georgia General Assembly made minimal amendments to the Workers' Compensation Act ("the Act").¹

It has long been a fundamental tenet of Georgia's workers' compensation system that employees are required to accept authorized medical treatment.² Likewise, a similar requirement to cooperate is found in the provisions allowing an employer to obtain an independent medical evaluation.³ The procedures for enforcing this requirement were more well-defined for independent medical evaluations because non-cooperation was much more frequent in that area. Therefore, the procedures regarding employee cooperation with authorized medical treatment were modified to copy the procedures regarding employee cooperation with independent medical evaluations.⁴ If the employee refuses to submit or in any way obstructs an examination by the authorized treating physician, the employee's right to compensation "shall" be suspended upon order of the board, unless, in the opinion of the board, the circumstances justify the employee's refusal.⁵

No issue is more controversial in Georgia's workers' compensation system than the definition of "catastrophic injury" found in O.C.G.A. section 34-9-200.1(g)(6).⁶ Frequently referred to as the "safety net" catastrophic category, the provision includes in the definition of "catastrophic injury" any injury "of a nature and severity that prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified."⁷ It also allows for consideration of decisions granting or denying disability income benefits under the Social Security Act.⁸ To clarify that the social security decision does not create a presumption, the code section was modified to state that "no presumption shall be created by any decision granting or denying disability income benefits under Title II or supplementary security income benefits under Title XVI of the Social Security Act."⁹

Historically, there has not been a statute of limitations on medical expenses for claims in which compensability has been accepted under the Workers' Compensation Act.¹⁰ Implementing what appears to be more of a waiver than a statute of limitations, O.C.G.A. section 34-9-203(c) was modified to add the following language as a fourth subsection:

Notwithstanding any other provisions of this subsection, if the employee or the provider of health care goods or services fails to submit its charges to the employer or its workers' compensation insurer within one year of the date of service of the issuance of such goods or services, then the provider is deemed to have waived its right to collect such charges from the employer, its workers' compensation insurer, and the employee.¹¹

The new code section neither measures the time period from the date of service until a claim or cause of action is filed, nor requires affirma- tive attempts to institute a claim within a specific period of time. Instead, the right of the employee or any provider of healthcare goods or services to file a claim simply expires and is waived if the charges are not submitted to the employer or its workers' compensation insurer within one year from the date of service.¹² The new code section does not define the threshold issue of how charges may be submitted.

Finally, the cap on temporary total disability benefits was raised from $400 per week to $425 per week,¹³ and the cap on temporary partial disability benefits was raised from $268 per week to $284 per week.¹⁴

II. Attorney Fees

During this survey period, two appellate cases dealt with the board's broad authority to assess attorney fees against a party. In Seabolt v. Beaulieu of America,¹⁵ the court of appeals granted discretionary review to consider whether the appellate division could assess attorney fees in its award, even though the administrative law judge ("ALJ") did not.¹⁶ The employee, Dockrey, requested a hearing seeking income benefits and medical treatment. She also sought attorney fees for an alleged unreasonable defense of her claims.¹⁷ After an evidentiary hearing, the ALJ denied Dockrey's claim for income benefits, concluding that Dockrey was terminated from her employment for reasons unrelated to her on-the-job injury and that she failed to carry her Maloney burden.¹⁸ However, the ALJ ordered the employer/insurer to pay for medical treatment Dockrey received and to provide ongoing medical treatment to her. The award was completely silent as to the assessment of attorney fees against the employer/insurer.¹⁹

On appeal to the appellate division of the State Board of Workers' Compensation, Dockrey was awarded attorney fees. The appellate division assessed attorney fees on the ground that the employer/insurer unreasonably defended the request for medical treatment pursuant to O.C.G.A. section 34-9-108(b).²⁰ The superior court affirmed all of the findings of the board except the appellate division's assessment of attorney fees.²¹ It reasoned that the absence of any discussion by the ALJ about attorney fees "could be an oversight or could be an implicit denial of them."²² Because the superior court could not determine the ALJ's intent, the court remanded the case to the board for clarification by the ALJ on the attorney fee issue.²³

The court of appeals reversed.²⁴ It cited O.C.G.A. section 34-9-108(b),²⁵ which states: "Upon a determination that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds, the administrative law judge or the board may assess the adverse attorney's fee against the offending party."²⁶ Thus, the appellate division has power to assess attorney fees for the unreasonable prosecution or defense of a claim even when the administrative law judge did not assess attorney fees.²⁷

In the second case regarding assessed attorney fees, Milliken & Co. v. Poythress,²⁸ the court of appeals again held that the superior court erroneously reversed an award of attorney fees by the board.²⁹ Poythress was a bale press operator who first complained of neck, arm, and wrist problems to his supervisor in March 1997. He did not seek workers' compensation income benefits or medical treatment until October 1999, when the employer's human resources department sent him to a panel physician. In April 2000, the employee's problem was definitively diagnosed, and the treating physician determined that he was disabled. He requested light duty work from the employer, but none was available. The employer denied that the claim was compensable but did not actually file a WC-1 form controverting the claim until the date of the hearing before the ALJ.³⁰

At the hearing, the ALJ held that the employee's problems were related to his employment and thus awarded income and medical benefits.³¹ The ALJ found that assessed attorney fees were appropriate because the claim had been defended, "at least in part, after medical evidence demonstrated an injury arose out of and in the course of the employment and benefits should have been then provided."³² The ALJ further stated that assessed attorney fees were appropriate because the employer/insurer had not timely filed the WC-1.³³ Although the superior court affirmed the board's finding as to compensability of the claim, it reversed the finding as to attorney fees, stating, "there is not sufficient competent evidence in the record that the defense of such claims was unreasonable and the ruling otherwise is contrary to law and the evidence in the record."³⁴

In reinstating the board's assessment of attorney fees, the court of appeals referred to the mandatory nature of the WC-1 and the specific timing requirements for its filing:³⁵ "[O.C.G.A. section] 34-9-221(d) provides: 'If the employer controverts the right to compensation, it shall file with the board, on or before the twenty-first day after knowledge of the alleged injury or death, a [WC-1] notice . . . stating that the right of compensation is controverted.'"³⁶ The court then quoted O.C.G.A. section 34-9-108(b)(2),³⁷ regarding the assessment of attorney fees:

"If any provision of Code Section 34-9-221, without reasonable grounds, is not complied with and a claimant engages the services of an attorney to enforce his or her rights under that Code section and the claimant prevails, the reasonable quantum meruit fee of the attorney, as determined by the board, and the costs of the proceedings may be assessed against the employer."³⁸

It was undisputed that the employer knew of Poythress's injury by October 1999, at the latest, when the employer sent him to a panel doctor.³⁹ It was likewise undisputed that the employer/insurer had not filed the WC-1 until the hearing, and that it had no explanation for its failure to file within the requisite twenty-one days.⁴⁰ Consequently, the court held that the board was well within its authority to find that the employer/insurer's non-compliance was unreasonable and that the assessed attorney fees were appropriate.⁴¹

III. Catastrophic Designation

In Jered Industries, Inc. v. Pearson,⁴² the court of appeals addressed the board's authority to make a determination that a claim is catastrophic, as well as the superior court's role in reviewing the determination on appeal.⁴³ Pearson suffered a compensable back injury in 1994 and underwent three surgeries. Although he attempted to return to work at light duty, he was forced to stop working after three weeks due to pain. Pearson's treating physician, Dr. Gold, opined that Pearson was permanently and totally disabled. Based upon this statement, Pearson applied for and received Social Security Disability Income ("SSDI") benefits. Pearson then requested rehabilitation services. The employer/insurer disputed that Pearson's injury was catastrophic under the Workers'...