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

JurisdictionGeorgia,United States
Publication year1998
CitationVol. 50 No. 1

Workers' Compensationby

H. Michael Bagley*

Daniel C. Kniffen**

Katherine D. Dixon***and

Marion H. Martin****

The 1997-98 survey period was marked by a relatively calm legislative session with respect to workers' compensation, in sharp contrast to the significant legislation that has reshaped the Georgia's Workers' Compensation Act this decade. As usual, however, the appellate courts were active in the workers' compensation arena, issuing decisions over a broad range of issues. In particular, significant rulings affected change in condition cases, the intoxication defense, and the ongoing issue of psychological injury.

I. Legislation

As it has virtually every year this decade, the 1998 General Assembly made a number of amendments to the Georgia Workers' Compensation

Act ("the Act").1 For the first time in many years, however, the maximum rate for disability benefits was not increased and was left at the levels established in 1997.2 Although none of the 1998 amendments can be considered as significant as some of the dramatic changes made in recent years, a number of amendments specifically impact the litigation of workers' compensation cases and are therefore required reading for practitioners in this area.

A. Admissibility of Evidence

An amendment to O.C.G.A. section 34-9-102 now allows laboratory test reports, performed pursuant to O.C.G.A. section 34-9-415, into evidence with an accompanying affidavit from the laboratory confirming authenticity.3 In addition, the amendment excludes the applicability of O.C.G.A. section 24-3-18 from workers' compensation claims.4 The amendment will simplify the trial of intoxication cases under O.C.G.A. section 34-5-17 by obviating the need for authenticating laboratory results through witness testimony.5

B. Calculation of Average Weekly Wage

O.C.G.A. section 34-9-260 was amended to change the calculation of the average weekly wage of the Georgia National Guard serving on state active duty to the greater of: (1) seven-thirtieths of the monthly pay and allowances of the individual at the time of the injury, adjusted for appropriated increases in such monthly pay and allowances; or (2) the average weekly wage of the individual in his or her other employment at the time of the injury, or if such individual worked at the time of the injury for more than one employer, the combined average weekly wage of the individual in such multiple employment.6

C. Calculation of Temporary Partial Disability Benefits

O.C.G.A. section 34-9-104 was amended regarding the calculation of temporary partial disability benefits when an employee had experienced a change in condition and had been released to light duty by the authorized treating physician.7 The amount of temporary partial disability benefits shall be the maximum allowed under O.C.G.A. section

34-9-262 unless the employee was receiving less than such maximum amount, in which event the employee would continue to receive benefits as provided by section 34-9-261.8 This amendment resolves an uncertainty created by the so-called "statutory change in condition" when O.C.G.A. section 34-9-104(a)(3) was created in 1992 and legislatively overrules case law to the contrary.9

D. Penalty for Wrongly Retaining Benefits

An amendment to O.C.G.A. section 34-9-21 deletes the current penalty provisions and adds penalties for any employee who is convicted of the misdemeanor offense of knowingly and wilfully receiving and retaining benefits to which he or she is not entitled.10 The offense is punishable by a fine not to exceed $10,000 and no less than $1,000, or one year of imprisonment, or both.11

E. Change of Physician

O.C.G.A. section 34-9-201 was amended to delete the sixty day requirement imposed on an employee to unilaterally change physicians when a conformed panel is used.12 The amendment allows an employee to make a one-time unilateral change of physician at any time during the pendency of the claim.13

F. Suspension of Benefits

An amendment to O.C.G.A. section 34-9-204 deletes language authorizing the suspension of income benefits for an employee's unreasonable refusal to undergo surgical procedures.14 The amendment also adds a provision authorizing the suspension of benefits if an employee has a subsequent nonwork-related injury which breaks the chain of causation between the compensable injury and the employee's disability.15 This amendment responds to the supreme court's decision in Hallisey v. Fort Howard Paper Co.16

G. Reimbursement

An amendment to O.C.G.A. section 34-9-265 authorizes an insurer or self-insurer to obtain reimbursement when death benefits have been paid to the State Board of Workers' Compensation in error.17

H. Self-Insured Guaranty Trust Fund

Amendments by the General Assembly made housekeeping changes to the provisions relating to the Self-Insurers Guaranty Trust Fund ("the Fund").18 The legislation authorizes the Fund to levy penalties and fines against self-insured employers.19 In addition, it requires the Board of Trustees of the Fund to use the security deposit of a participant to pay the workers' compensation obligation assumed by the Fund.20

An amendment to O.C.G.A. section 34-9-385 authorizes the Board of Trustees to direct the Fund to honor and pay any contractual arrangement between an attorney and an employee, provided that application is made and all parties are given notice and time to make any objections.21

I. Audits of Group Self-Insurance Funds

O.C.G.A. section 34-9-172 was amended to authorize the Commissioner of Insurance to contract with private examiners to conduct the mandatory audits of group self-insurance funds to verify the solvency of the funds.22 The self-insurance funds are still required to pay the cost of the examination.23 This allows the Commissioner of Insurance to hire experienced auditors and, as a result, reduce the overall cost of mandatory fund audits.

J. Drug-Free Workplace

O.C.G.A. section 34-9-411 was amended by adding sections 34-9-411(7.1) and 34-9-411(14.1) to include self-insured employers and group self-insured employers in the definitions applicable to drug-free workplace programs.24 O.C.G.A. section 34-9-412.1 was added to authorize the State Board to certify self-insured employers or employer members of a group self-insurance fund as "drug-free" workplaces if all the requirements of section 34-9-413 are met.25 The purpose of these changes is to allow all employers within the state who have been certified as drug-free by the State Board to obtain a 0.2% reduction in the employers' contributions to unemployment tax.26

II. Padgett v. Waffle House-. A Retaliatory Discharge Remedy in Georgia?

Perhaps the most significant decision in the survey period was the supreme court's holding in Padgett v. Waffle House, Inc.27 that a claimant may prove a change in condition by demonstrating a compensable injury was the proximate cause of the claimant's termination from employment.28 In reversing the court of appeals,29 the supreme court interjected an entirely new line of inquiry into the workers' compensation system: whether an employer's motivation in terminating the employment of a worker who has previously suffered an on-the-job injury is retaliation for a workers' compensation claim. Although limited to cases in which the claimant has the burden of proof to demonstrate a change in condition, this holding promises to open a Pandora's box of litigation in the workers' compensation system.

Scarlett O'Hara Padgett suffered a work-related injury while working for Waffle House in February 1993 and received disability benefits until she returned to light-duty work for Waffle House in November 1993.30 Padgett continued to perform light-duty work for nearly a year, receiving temporary partial disability benefits pursuant to O.C.G.A. section 34-9262.31 Waffle House terminated Padgett's employment in September 1994 based upon three separate violations of company policy: (1) fraudulently inflating commissions, (2) using profanity, and (3) sitting in customer seating.32 The Administrative Law Judge ("ALJ") found that claimant met her burden of proof as to a change in condition by her demonstration that one of these three violations, namely sitting in customer seating, was related to her compensable injury.33 The ALJ, therefore, concluded that claimant met her burden of proof demonstrating a change in condition.34

The court of appeals reversed, holding that the supreme court's ruling in Moloney v. Gordon County Farms35 required claimant to demonstrate a diligent but unsuccessful search for suitable employment in order to meet her burden of proof.36 The court of appeals specifically held that the cause of claimant's termination was not a proper subject of inquiry into whether claimant had suffered a change in condition.37

The supreme court reversed, however, holding that the requirement of a "diligent but unsuccessful job search" does not apply if the claimant establishes that the compensable injury was the proximate cause of the subsequent termination:

The concern addressed in Moloney is that benefits should be awarded only where the economic change for the worse is proximately caused by the work-related injury. Proof of a diligent job search allows the Board to infer this critical causal connection where the termination is for reasons wholly unrelated to the injury. However, by proving that the work-related injury is the proximate cause of the termination, the claimant establishes the causal link between injury and worsened economic condition. The causal link is the important element rather than the method of proving it.38

Having reached this conclusion, the supreme court remanded the case for a determination of whether claimant's compensable injury was the "proximate cause" of her subsequent termination.39

For the first time, therefore, the supreme court has interjected the myriad questions that surround an employee's termination into the workers' compensation system. Unfortunately...

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