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

• Publication year: 2000

Workers' Compensationby H. Michael Bagley^*

Daniel C. Kniffen^**

Katherine D. Dixon^*** and

Marion Handley Martin^****

For workers' compensation, the 1999-2000 survey period was largely notable for a number of legislative changes and for another year in which Georgia's appellate courts dealt with numerous cases interpreting the exclusive remedy provisions of the Workers' Compensation Act. As always, however, the appellate courts also decided numerous workers' compensation cases, with issues ranging from the "any evidence" rule to superior court judgments.

Additional legislative activity is possible in the coming year as a special commission appointed by Governor Barnes readies a report, due in April 2001, on proposed changes to the workers' compensation system.

I. Legislative Changes

As in most other years during the last decade, the Chairman's Advisory Committee made a number of recommendations regarding amendments to various sections of the Workers' Compensation Act.

Listed below is a summary of the changes made by the Legislature during the 2000 session, all of which became effective on July 1, 2000.

A. Spousal Dependency—Official Code of Georgia Annotated ("O. C. GA.") section 34-9-13(b)(D

This amendment deleted the language referencing employment of the spouse of a deceased employee. Most households need both incomes, and the employment of a spouse for a period of ninety days prior to the accident should not be a determinative factor as to whether the spouse was wholly dependent on the deceased employee. Instead, the presumption of total dependence is now rebuttable if the husband and wife lived separately for ninety days before the accident.

B. No-Liahility Settlements—O.C.GA. section 34-9-15

Two new subsections to the statute were added. Subsection (b) gives the Board authority to approve fees for no-liability stipulations. Subsection (c) addresses the problem of social security offsets in the settlement of workers' compensation cases by allowing lump-sum settlements to be prorated over the life expectancy of the injured worker.

C. Late Payment of Medical Charges—O.C.GA. section 34-9-203(c)

The Board is permitted to assess a penalty of up to twenty percent of reasonable medical charges not paid within thirty days from the date that the employer or insurer receives the charges along with medical reports and forms required by the Board. Specifically, the amendment decreased the length of time an employer or insurer may make payment of medical charges from sixty days to thirty days.

D. Electronic Funds—O.C.GA. section 34-9-221

This amendment allows income benefits to be paid by electronic funds transfer.

E. Temporary Total Disability Maximum—O.C.GA. section 34-9-261

This amendment increased the maximum amount of temporary total disability benefits from $350 per week to $375 per week, and it increased the minimum amount of temporary total disability benefits from $35 per week to $37.50 per week.

F. Temporary Partial Disability Maximum—O.C.GA. section 34-9262

This amendment increased the maximum amount of temporary partial disability benefits from $233.33 to $250 per week.

G. Death Benefit Maximum—O.C.GA. section 34-9-265(d)

The maximum death benefit paid to a surviving spouse who is the sole dependent at the time of death was increased from $100,000 to $125,000.

II. Exclusive Remedy

During the last survey period, the appellate courts devoted substantial attention to the exclusive remedy doctrine. The court's application of the exclusive remedy provisions of the Workers' Compensation Act ("the Act") can be categorized in three areas: (1) the protection of the co-employee; (2) the adherence to proper procedure and the penalties thereof; and (3) the interaction between the exclusive remedy provisions with other existing laws.

A. The Protection of the Co-Employee

The Act expressly provides, and Georgia courts have upheld the legal contention, that when a claimant sustains an injury in the scope of employment by another co-employee's negligence, the co-employee is immune from tort liability.¹

In Webster v. Dodson,² the claimant sought damages from a co-employee and Stein Mart under the theories of assault and battery and intentional infliction of emotional distress. While fielding a store complaint about which the claimant may have had pertinent information, the co-employee made contact with the claimant's shoulder "to get her attention to tell her to be quiet" until the co-employee finished the conversation with the upset customer.³ It was undisputed that the physical contact arose during the handling of a work-related activity, during normal working hours, and from the assigned work duties in the furtherance of Stein Mart's business.⁴ Hence, the court found no evidence to suggest that the alleged tortious act was committed for personal reasons unrelated to the conduct of the employer's business.⁵ The trial court's finding that the claim was barred by the Act was properly adjudicated summarily.⁶

Subsequently, the court stood on the Webster opinion to address a similar tort claim issue in Solis v. Lamb.¹ In Solis plaintiff failed to respond to the co-employee's request for admission that the co-employee was "acting during the course and scope of her employment at the time of the alleged events as stated in the complaint."⁸ Moreover, plaintiff '"chose not to seek the liberal remedies afforded to parties under the statute to avoid the consequences of a failure to respond.'"⁹ Therefore, in light of the claimant's admissions, the exclusive remedy provisions of the Act were triggered, and recovery was barred.¹⁰

In Cotton v. Bowen,¹¹ the court addressed the related issue of whether a co-employee loses immunity if he is considered a "construction design professional."¹² Plaintiff was an experienced operator of a printing press that required him to "web" sheets of paper through rollers. Plaintiff was asked to test a printing press that had been modified and reinstalled. During the testing, plaintiff's arm was crushed in the rollers. Plaintiff brought suit against the installers of the press and a co-employee.¹³ The court affirmed the granting of summary judgment to the co-employee, holding the exclusive remedy provisions of the Act barred plaintiff's tort claim.¹⁴ Plaintiff contended the co-employee lost his statutory protection on the ground that he was a '"construction design professional.'"¹⁵ The court disagreed and held the segment of the statute cited by plaintiff created a second category of immune persons, rather than an exception.¹⁶ In its explanation, the court relied upon language in Warden v. Hoar Construction Co.¹⁷ in concluding that the statute provides immunity to co-employees and to "persons who provide workers' compensation benefits under a contract with the employer, and 'construction design professionals.'"¹⁸ Consequently, the court held the Act provided plaintiff with his exclusive remedy.¹⁹

While the court in Webster found summary judgment was appropriate, the court in Wade v. Georgia Diversified Industries, Inc.,²⁰ found the facts in this wrongful death action created genuine issues for a jury to consider.²¹ In Wade the employer provided a free transportation service for its employees.²² Participation in the service was not mandatory, nor were the employees paid for traveling to and from work. Occasionally, the president of the company would use his personal vehicle to transport employees. The decedent used the free transportation service and was paid based on his production. On the night of the fatal accident, the decedent worked later than his normal shift and accepted a ride home in the president's personal vehicle. After taking other employees home, the president made the unilateral decision to return to the office. Before reaching the office, however, they were involved in the accident.²³ The court concluded that a jury must determine whether the fatality arose out of and in the course of the employment or whether the accident was the unfortunate result of a co-employee's merely gratuitous ride.²⁴

B. The Procedural Adherence

During the survey period, the court stressed the importance of procedure and protocol. In Maguire v. Dominion Development Corp.,²⁵ plaintiff formed a partnership with two of his relatives and began to work at a construction site under a general contractor. While working, plaintiff injured his back and foot when the scaffolding where he was standing collapsed. Plaintiff brought suit against the general contractor for negligence. In turn, the general contractor sought immunity under the exclusive remedy doctrine. The trial court affirmed the administrative law judge's ("ALJ") finding that plaintiff was not an "employee" of the general contractor, but rather was an immediate employee of the partnership he created with his two relatives. As a result, O.C.G.A. section 34-9-8 required plaintiff to seek benefits from the partnership before pursuing a claim against a statutory employer. Because plaintiff did not do so, the general contractor did not pay workers' compensation benefits.²⁶ Moreover, the court clarified that "statutory employers also enjoy tort immunity even if they do not pay a claim."²⁷ The court forcefully remarked that it would not "allow injured workers to circumvent a statutory employer's tort immunity by intentionally failing to file a claim against his immediate employer."²⁸

In Sam's Wholesale Club v. Riley,²⁹ the court addressed the impact that a default judgment and the absence of a lower court's transcript have when an appellate court reviews a dispute involving the exclusive remedy provisions.³⁰ In this case plaintiff sought damages for intentional infliction of emotional distress, assault, and attempts to commit physical injuries. The employer, Sam's Wholesale Club ("Sam's"), fell into default judgment. The trial court denied Sam's motions to dismiss, set aside, and open default judgment. Particularly, Sam's argued that plaintiff was precluded...