Workers' Compensation - H. Michael Bagley, Daniel C. Kniffen, John G. Blackmon, Jr., and Phillip Comer Griffeth

• Publication year: 1996

Workers' Compensationby H. Michael Bagley^* Daniel C. Kniffen" John G. Blackmon, Jr.^** and Phillip Comer Griffeth^***

I. Introduction

Perhaps the most interesting developments this survey period came from the many opportunities the Georgia Supreme Court had to tackle difficult issues in the workers' compensation arena, especially when the court rarely hears workers' compensation appeals. From what some would call drastic developments in the claimant's burden of proof in change in condition cases, to an examination of Georgia's long-standing requirement of a "physical injury" in psychological claims, the court was faced with some interesting legal arguments. Although these opinions may not require legislative intervention or clarification, the Chairman of the State Board's advisory committee will no doubt continue to fine tune certain aspects of the Workers' Compensation Act (the "Act"),¹ as the committee has done in previous survey periods. In the end, final word on some of these somewhat controversial issues (e.g., the compensability of mental-mental psychological claims) may come through the Georgia General Assembly.

II. Attack on the Exclusive Remedy Doctrine

Judicially recognized exceptions to the exclusive remedy doctrine have been developed to deal rationally and consistently with matters clearly outside of the workers' compensation system, or to draw a distinct line for circumstances lying on the periphery.² Unlike the exceptions traditionally recognized by Georgia courts, an exception involving the delivery of medical care would affect the most fundamental working part of the workers' compensation system. Statistics published by the State Board of Workers' Compensation ("Board") show that more than fifty-seven percent of all funds flowing through the system were for medical care in 1994.³ More importantly, while virtually every claim involved medical care, less than twenty-four percent of claims also resulted in the payment of disability benefits.⁴ Therefore, the implications of creating a new exception to the exclusive remedy doctrine for alleged delays in providing medical care are profound because there is a high probability that a new exception will result in an increase in litigation unprecedented in Georgia history. Practically every workers' compensation claim could generate a civil action. In fact, every workers' compensation claim could generate multiple civil actions for each alleged delay in medical care.

At the heart of this controversy is the court of appeals decision in Zurich American Insurance Co. v. Dicks.⁵ June Dicks sustained a work-related injury and was provided medical care by an authorized physician who certified that Ms. Dicks was totally disabled. The workers' compensation insurer arranged for an independent medical evaluation by another physician. After this physician opined that Ms. Dicks was not disabled, the employer not only suspended payment of disability benefits, but also suspended the physical therapy that had previously been ordered by Ms. Dicks's authorized physician. The Administrative Law Judge ("ALJ") ordered all benefits restored and also awarded attorney fees to Ms. Dicks. However, Ms. Dicks then brought a civil action against the workers' compensation insurer alleging that her condition had been aggravated by the delay in receiving medical care.⁶

In a six-to-three decision written by Chief Judge Dorothy Beasley, the whole court found that the exclusive remedy doctrine does not bar a civil suit alleging physical injuries from intentional delays in providing medical care for a work-related injury.⁷ The decision was based upon the erroneous conclusion that, "[t]o hold otherwise would leave Dicks and others similarly situated without legal remedy."⁸ This is a novel and heretofore unseen interpretation of the law in Georgia.

Although the court of appeals did not directly decide this issue in Jim Walter Homes, Inc. v. Roberts,⁹ the court in Dicks relied upon certain dicta in the Jim Walter Homes opinion.¹⁰ The key factor in the Jim Walter Homes decision was that it was a default case which created a factual scenario that would not normally exist—the employer could not challenge the allegation that the handling of medical care was outside the purview of the Act.¹¹

Contrary to the court of appeals' reasoning in Dicks and Jim Walter Homes, the Act does provide remedies for intentional delay of medical treatment. Not only can the Board "appoint one or more" physicians to "make any necessary medical examination,"¹² or order a complete change of physician or treatment,¹³ but the Board can also assess attorney fees when authorized medical care is impeded "in whole or in part without reasonable grounds."¹⁴ The Board is also empowered to assess a penalty of up to twenty percent of the amount of any medical expense that is not paid within sixty days,¹⁵ and may also assess a civil penalty of up to ten thousand dollars per violation for intentionally making any representation for the purpose of "the obtaining or denying of any benefit" under the Act.¹⁶ Furthermore, specifically addressing the issue of damages for an employee's potentially enhanced physical problems, to the extent that any delay in medical care prolongs the employee's period of disability, payment of temporary total disability benefits would be extended correspondingly.¹⁷ Additionally, greater recovery of permanent partial disability benefits could also result from an increase in the employee's permanent physical impairment caused by the delay.¹⁸ Finally, in contemplation of the most egregious intentional act by an employer, Official Code of Georgia Annotated ("O.C.G.A.") section 34-9-265(e) enhances death benefits by twenty percent for dependents of any deceased employee whose death "was the direct result of an injury proximately caused by the intentional act of the employer with specific intent to cause such injury."¹⁹

Although the Georgia Supreme Court could not hear the Dicks case due to that case's procedural posture, the court ultimately decided a similar question certified by the United States Court of Appeals for the Eleventh Circuit:

Does Georgia law recognize an independent cause of action apart from any remedy under the Georgia Workers' Compensation Act where an employer and/or insurer has intentionally delayed authorizing medical treatment to which an employee is entitled under the Act and where such delay has exacerbated a work-related physical injury?²⁰

The court unanimously found that an independent cause of action in tort for the intentional delay of medical treatment in a workers' compensation claim is "inconsistent with the public policy behind the statutory scheme," thereby barring the viability of any tort action on that theory.²¹ The court specifically reversed Zurich American Insurance Co. v. Dicks,²² in which the court of appeals reached a contrary conclusion, alluded to its previous decision in Bright v. Nimmo,²³ which denied an independent action for the intentional delay of disability payments,²⁴ and specifically addressed the issue of public policy, pointing out that the exclusive remedy provision is "the bedrock of the workers' compensation system" since it is the "quid pro quo for workers receiving a guaranty of prompt benefits for work-related injuries without regard to fault or common law defenses and without the delay inherent in tort litigation."²⁵ The court further articulated the reality that workers' compensation "has never been intended to make the employee whole—it excludes benefits for pain and suffering, for loss of consortium, and it provides a cap on wage benefits."²⁶ In the final analysis, the court reaffirmed that any exception to the exclusive remedy doctrine "must originate with the Legislature."²⁷ With the Georgia Supreme Court's unequivocal decision in Doss, the exclusive remedy doctrine has withstood yet another attack.

Other developments this survey period show that the exclusive remedy doctrine is not always all encompassing. For example, in Coleman v. Columns Properties, Inc.,^2a the employee was injured in a fall and brought a premises liability suit. A prior workers' compensation claim had been denied because the employee failed to prove that her accident "arose out of and in the course of her employment."²⁹ The Georgia Supreme Court held that because the workers' compensation decision was not a binding determination on the employee's status as a non-invitee, the property owner's motion for summary judgment was properly denied.³⁰ Also, actions by children of injured employees are not derivative of any work-related claim of the parent-employees and therefore will not be subject to the exclusive remedy rule.³¹ In Hitachi Chemical Electro-Products, Inc. v. Gurley, the court held that the employer's motion to dismiss was properly denied in an action by employees and their children alleging injuries to the children for negligent exposure of the parent-employees to hazardous chemicals.³²

During this survey period, the Georgia Supreme Court also reversed a decision from the court of appeals and held that the exclusive remedy doctrine prevents a co-employee from being brought into an employee's action against a third party.³³ In Weller v. Brown,³⁴ the plaintiff was rear-ended while on the way to an employer-sponsored seminar. A co-employee was riding with the defendant to the seminar. After being sued, the defendant brought the co-employee into the suit by implead-er.³⁵ The court of appeals allowed the third-party complaint, even though the defendant and co-employee had received workers' compensation benefits.³⁶ However, the supreme court held that the exclusive remedy doctrine precludes a defendant in a personal injury action from asserting a third-party contribution claim against a co-worker of the injured employee.³⁷

III. Legislative Changes

Once again, the 1996 Legislative Session saw a bill drafted by the Board's Legislative Subcommittee, House Bill 1291...