Workers' Compensation - H. Michael Bagley and J. Benson Ward

• Publication year: 2010

Workers' Compensation

by H. Michael Bagley* and J. Benson Ward**

The survey period from June 1, 2009 to May 31, 2010¹ was notable for several decisions of the Georgia Court of Appeals in areas ranging from temporary exacerbation of preexisting injury to choice of law. Minimal legislation was enacted in these areas.

I. Legislation

In relation to the Workers' Compensation Act,² the Georgia General Assembly was relatively quiet in 2010. Although section 34-9-12(b) of the Official Code of Georgia Annotated (O.C.G.A.)³ was modified to facilitate the publishing of board awards on specific cases,⁴ the Self-insurers Guaranty Trust Fund⁵ was the essential focus of the General Assembly's remaining legislation for 2010.⁶

The only other legislation of significance, and perhaps the most controversial, was the General Assembly's modification of the Georgia

* Partner in the firm of Drew, Eckl & Farnham, LLP, Atlanta, Georgia. Emory University (B.A., 1977); University of Georgia School of Law (J.D., 1980). Member, State Bar of Georgia.

** Associate in the firm of Drew, Eckl & Farnham, LLP, Atlanta, Georgia. University of Georgia (B.A., 2002); University of Georgia School of Law (J.D., 2005). Member, State Bar of Georgia.

1. For analysis of Georgia workers' compensation law during the prior survey period, see H. Michael Bagley & J. Benson Ward, Workers' Compensation, Annual Survey of Georgia Law, 61 MERCER L. REV. 399 (2009).

2. Ga. H.R. Bill 814, Reg. Sess., 1920 Ga. Laws 167 (codified at O.C.G.A. ch. 34-9 (2008 & Supp. 2010)).

3. O.C.G.A. § 34-9-12(b) (2008 & Supp. 2010).

4. Ga. H.R. Bill 1101, § 1, Reg. Sess., 2010 Ga. Laws 126 (codified at O.C.G.A. § 34-9-

12(b) (Supp. 2010)).

5. O.C.G.A. §§ 34-9-380 to -389 (2008 & Supp. 2010).

6. See Ga. H.R. Bill 1101 at § 4, 2010 Ga. Laws at 128 (codified at O.C.G.A. §§ 34-9-380

to -389 (Supp. 2010)).

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Insurer's Insolvency Pool Act,⁷ which is likely to indirectly impact the state workers' compensation system.⁸ Prior to this legislation, the Georgia Insurers Insolvency Pool was not liable for any workers' compensation claims incurred by captive insurance companies before January 1, 2008.⁹ Likewise, the Insolvency Pool had the right to recover from any employer who was an insured ofan insolvent workers' compensation insurer and whose net worth exceeded $25 million with all amounts paid by the pool on behalf of the insured.¹⁰ The 2010 legislation created a mechanism whereby these entities that were previously barred from coverage by the Insolvency Pool could elect in certain emergency circumstances to buy into the Insolvency Pool with the payment of $10,000 for insureds with a net worth less than $25 million, or $50,000 if the electing insured's net worth exceeds $25 million.¹¹

II. Course of Employment

The court of appeals dealt with the subject of idiopathic injuries for a second year in a row during this survey period,¹² and this year the court held that an employee's injury did not arise in the course of her employment,¹³ arguably limiting the reach of its prior decision in Harris v. Peach County Board of Commissioners¹⁴ in the process. In St. Joseph's Hospital v. Ward,¹⁵ the employee, a hospital nurse, asserted four different accident dates for injuries to her knees, dating from 2003 through 2005. After a hearing, the administrative law judge (ALJ) found that the June 2005 right-knee injury was compensable. The administrative record showed that the injury occurred on June 23, 2005, when the employee entered a patient's room to administer medication and twisted her right knee, experiencing a sudden pop, while turning around to get the patient some water. on July 7, 2005, the employee attempted to return to work after the injury but was unable to do so because of right-knee pain. She remained out of work through August 2005 when she was offered a sit-and-greet position. She continued to

7. O.C.G.A. ch. 33-36 (2005).

8. See Ga. H.R. Bill 1364, Reg. Sess., 2010 Ga. Laws 1085 (codified at O.C.G.A. §§ 3336-11, -36-14, -36-20, -41-20.1 (Supp. 2010)).

9. O.C.G.A. § 33-41-20.1(b) (Supp. 2009).

10. O.C.G.A. § 33-36-14(d)(1) (2005).

11. Ga. H.R. Bill 1364 at § 3, 2010 Ga. Laws at 1087 (codified at O.C.G.A. § 33-36-20(c)

(Supp. 2010)).

12. For analysis of the subject of idiopathic injuries during the previous year, see supra

note 1, at 404-05.

13. St. Joseph's Hosp. v. Ward, 300 Ga. App. 845, 848, 686 S.E.2d 443, 445 (2009).

14. 296 Ga. App. 225, 674 S.E.2d 36 (2009).

15. 300 Ga. App. 845, 686 S.E.2d 443 (2009).

2010] WORKERS' COMPENSATION 385

work until September 2005 before leaving for a knee replacement. The employee's doctor continued to hold her out of work following the

surgery.¹⁶

The ALJ also found sufficient evidence showing that in September 2005 the employee sustained a new, fictional accident when she was unable to work because of a gradual worsening of her physical condition, partially due to her continued work after her June 2005 injury.¹⁷ On appeal, the Appellate Division of the Georgia State Board of Workers' Compensation (SBWC) cited Chaparral Boats, Inc. v. Heath¹⁸ in concluding that the June 2005 "injury to her right knee was not compensable 'as the employee was not exposed to any risk unique to her employment by standing and turning, and that, in turning, she did not come into contact with any object or hazard of employment.'"¹⁹

In turn, the Superior Court of Richmond County, Georgia, concluded that the court of appeals decision in the Chaparral case was misconstrued by the appellate division because the employee's injury was a direct result of the performance of her work duties (namely, assisting a patient by turning to get a cup of water for the patient).²⁰ The superior court held that "[i]njuring her knee while turning to get a cup of water for a patient is not a risk to which [the employee] would have been equally exposed to apart from her employment."²¹ Thus, a causal connection existed between the employee's injury and her employment duties.²²

The court of appeals noted that the crucial issue was whether the employee proved "that her accidental injury arose out of her employ-ment."²³ Explaining that it was following the holding in Chaparral, the court concluded that employees who injure their knee while walking at work cannot receive workers' compensation benefits for that injury because they are engaged in an effort (that is, walking) that is a risk they are equally exposed to apart from their employment.²⁴ In other words, the employee's injury in St. Joseph's Hospital was idiopathic in

16. Id. at 846, 686 S.E.2d at 444.

17. Id.

18. 269 Ga. App. 339, 606 S.E.2d 567 (2004).

19. St. Joseph's Hosp., 300 Ga. App. at 847, 686 S.E.2d at 444.

20. Id. at 847, 686 S.E.2d at 445.

21. Id. (alteration in original).

22. Id.

23. Id. at 848, 686 S.E.2d at 445 (quoting Chaparral Boats, 269 Ga. App. at 340, 606

S.E.2d at 569) (internal quotation marks omitted).

24. Id. (quoting Chaparral Boats, 269 Ga. App. at 344, 606 S.E.2d at 572).

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that it was personal to the claimant and not the result of any risk unique to her employment.²⁵

The court noted that this result was harmonious with last year's decision in Harris²⁶ because in both decisions the court of appeals deferred to the appellate division's findings and the evidence that existed to support such findings.²⁷ According to the court, any statements in Harris that could be construed to conflict with Chaparral are nonbinding

dicta.²⁸

III. Change in Condition vs. New Accident: Intervening

EMPLOYMENT

In Trucks, Inc. v. Trowell,² the employee worked as a truck driver for Trucks, Inc., and her duties included the manual hooking and unhooking of trailers to tractor-trailer rigs as well as driving tractor-trailer rigs to and from Florida. To manually hook and unhook the trailers, the employee used a hand crank to roll down the trailers' landing gear. On April 18, 2006, while using the hand crank, the employee experienced a burning feeling in her right shoulder.³⁰ The employee "continued working at regular duty, but . . . sought medical treatment for pain in her neck and right shoulder."³¹ She timely notified her employer of the incident, and the claim was accepted as a compensable "medical-only" claim.³²

Within six months of the accident, the employee resigned due to a work slowdown and began working as a truck driver for a different employer, Trans Systems, Inc. (Trans Systems). Her new job duties included using a manual gear shift but did not include using a hand crank to raise and lower trailers. She worked for a little over a month before quitting in December when work slowed down. The following month, her treating doctor recommended surgery on her right shoulder and advised the employee not to work until surgery was performed. Because of her intervening employment with Trans Systems, Trucks,

25. See id.

26. For the court ofappeals decision and examination ofthe evidence in Harris, see 296 Ga. App. at 225-29, 231, 674 S.E.2d at 38-42.

27. St. Joseph's Hosp., 300 Ga. App. at 848 n.1, 686 S.E.2d at 445 n.1.

28. Id.

29. 302 Ga. App. 488, 690 S.E.2d 880 (2010).

30. Id. at 488-89, 690 S.E.2d at 881.

31. Id. at 489, 690 S.E.2d at 881.

32. Id. (internal quotation marks omitted).

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Inc. refused to pay for any further medical treatment or surgery. The employee responded by filing a claim against Trucks, Inc.³³

The ALJ found that the employee's medical condition was the result of her April 18 injury and not due to a change in condition or new accident, and the appellate division affirmed.³⁴ The Superior Court of Cobb County, Georgia, affirmed as well but based its decision on the fact that the employee "had proven a change in condition entitling her to benefits."³⁵

The court of appeals determined that the superior court erred in making its finding because the employee never previously received an award of workers' compensation benefits under O.C.G.A. §...