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

• Publication year: 2002

Workers' Compensationby H. Michael Bagley^* Daniel C. Kniffen^** Katherine D. Dixon^*** and Marion H. Martin^****

I. Introduction

The 2001-2002 survey period was marked by minimal legislation with respect to workers' compensation. But, as usual, the appellate courts were active in the workers' compensation arena, issuing decisions over a broad range of issues. In particular, significant rulings addressed the impact an employer's late notice to controvert had on the employer's defenses, the potential tort liability of an employer and insurer for the actions of an investigator hired to conduct surveillance, and the specificity of medical evidence that is used to causally connect job-related stress to heart attacks or strokes.

II. Legislation

The 2002 General Assembly made minimal amendments to the Georgia Workers' Compensation Act ("the Act").¹ The maximum rate for disability benefits was not increased and was left at the levels established in 2001.² There were only three legislative changes of note, and all can be characterized as "housekeeping" changes. The Act was amended to authorize the State Board of Workers' Compensation ("the Board") to provide certain data to state and federal government entities as authorized by law.³ The specific listing of each certification or license for rehabilitation suppliers was deleted and replaced with a provision enabling the Board to specify certification and licensure through Board rule.⁴ Finally, the statutory requirement that income benefit checks must be drawn on a Georgia depository was eliminated.⁵

III. Exclusive Remedy

For well over a decade, there have been attempted attacks upon the exclusive remedy doctrine.⁶ This year was no exception. However, Georgia courts continued to embrace the idea that the exclusive remedy for any damages arising out of or in the course of employment is found in the Act.

A traditional exception to the exclusive remedy doctrine, negligent hiring, was reaffirmed in Tecumseh Products Co. v. Rigdon? Wanda Faye Rigdon worked on Tecumseh's manufacturing line next to Dickie Godwin. Rigdon and Godwin exhibited a mutual dislike for one another, and Godwin threatened to hit Rigdon in the head with an engine cylinder block. Thereafter, Godwin twisted Rigdon's arm, injuring her elbow and bicep. Rigdon sued Tecumseh for negligently hiring and retaining Godwin. Rigdon contended that Tecumseh knew or should have known that Godwin was potentially dangerous to other employees because the company had previously fired Godwin after an altercation with his supervisor. A jury found in favor of Rigdon and awarded her $306,000 in compensatory damages and $250,000 in punitive damages.⁸ on appeal, the court observed that an employer must exercise ordinary care in the selection of employees⁹ and determined that whether an employer used ordinary care is an issue for the jury.¹⁰

The court of appeals addressed the geographic parameters of the exclusive remedy doctrine in the context of employee ingress and egress in Connell v. Head.¹¹ Connell was driving a school bus for the City of Cartersville when she collided with a car driven by Laura Head, a co-worker. Before the accident, Head had signed out of work and left the building. When the accident took place, she was in her car on property owned by her employer, the City of Cartersville School System. Head sued Connell, alleging negligence, and Connell raised the exclusive remedy provision as a defense. The trial court denied Connell's motion for summary judgment, finding that the property where the accident occurred was open to public use.¹² The court of appeals disagreed and reversed, holding that Head had not left school property when the injury occurred and that workers must have reasonable time to ingress and to egress the work place.¹³ For purposes of the ingress and egress rule, the court defined an employer's premises as "'[the] real property owned, maintained, or controlled by the employer.'"¹⁴ Therefore, because the accident arose out of and in the course of Head's employment, the exclusive remedy provision barred Head's tort action.¹⁵

In Miraliakbari v. Pennicooke,¹⁶ the court of appeals defined the extent to which the exclusive remedy doctrine applies to psychological injuries.¹⁷ A Burger King manager refused to let employee Zohreh Miraliakbari leave or use the telephone to respond to a purported emergency involving her six-year-old son, who had suffered a broken bone at school. Miraliakbari brought a claim on behalf of herself and, as next friend, on behalf of her son, alleging intentional infliction of emotional distress and false imprisonment. The trial court granted summary judgment to defendants, holding that the claim was precluded by the Act and that defendants did not show outrageous conduct sufficient to sustain an emotional distress claim.¹⁸ The court of appeals reversed the ruling that the Act was the employee's exclusive remedy, holding that intentional infliction of emotional distress is not covered by the provisions of the Act, and as such, the claim would not be barred by the exclusive remedy provision.¹⁹ The case of Oliver v. Wal-Mart Stores, Inc.,²⁰ involving similar facts, was held to be controlling.²¹

Despite holding that the exclusive remedy did not apply, the court of appeals did not reverse the trial court's grant of summary judgment on the issue of intentional infliction of emotional distress.²² While the manager's behavior was possibly reckless and wanton,²³ Burger King owed no duty to the employee's son and had not assumed one. These facts distinguish the case from Mixon v. Dobbs House, Inc. ,²⁴ in which an employer assumed a duty to an employee's wife to notify the employee when his wife was in labor.²⁵ Furthermore, because there was no indication that the employee was faced with reasonable apprehension that the manager would use force to keep her at work, there was insufficient restraint to constitute the tort of false imprisonment, and the court affirmed summary judgment on all issues.²⁶

In DeKalb Collision Center, Inc. v. Foster,²⁷ the court discussed the applicability of the exclusive remedy doctrine to injuries sustained by an employee while fighting to protect his employer.²⁸ Henry Foster was killed at his work place, DeKalb Collision Center, Inc., during a fight involving seven DeKalb Collision Center employees and some contractors. DeKalb Collision Center is an automobile paint and body repair shop. The owner of DeKalb Collision Center contracted with brick masons for construction of a brick facade. After the work was completed, a dispute erupted over the contract price, and the contractor threatened to tear down the brick work. A scuffle ensued between the owner and the contractor. Foster, who was sanding a car at the time, left his work area and attempted to break up the fight. He was injured in the process and later died. Foster's daughters sued DeKalb Collision Center, its employees involved in the fight, and the contractors, alleging their negligent and willful actions caused his death.²⁹

Following the trial, a jury returned a verdict against DeKalb Collision Center. DeKalb Collision Center appealed, asserting that the trial court erred in denying their motions for directed verdict and judgment notwithstanding the verdict based upon the exclusive remedy provision of the Act. DeKalb Collision Center argued that Foster's death was causally connected to his employment under the positional risk doctrine because his job subjected him to the risk by placing him in the position where he received the fatal injury.³⁰ The positional risk doctrine, first espoused in Georgia in National Fire Insurance Co. v. Edwards,³¹ provides that an injury is compensable under the Act when it is proved that the employee's work "brought him within range of the danger by requiring his presence in the locale where the peril struck, even though any other person present would have also been injured irrespective of his employment."³² The court of appeals observed that while the Edwards decision was a unanimous en banc decision, "[t]he positional risk doctrine has been inconsistently applied, and many subsequent decisions have held that the risk must be peculiar to the work."³³ However, the court did not see the need to address all of these instances and resolved the perceived conflict in order to decide this particular case.³⁴ The court went on to observe that:

The risk arose out of Foster's job because it was peculiarly related to his employment and his job brought him within the range of danger when the peril struck. Though it is undisputed that Foster's job description required him to sand cars, apply primer, and wash the vehicles in preparation for paint jobs, these were not the strict and absolute limits of his occupation with DeKalb Collision. Indeed, our case law often allows coverage under the Act for injuries sustained when an employee is not actually performing a task that is part of his job description. For instance, although walking back and forth to one's car parked in an employer's parking lot is not part of most job

descriptions, the ingress and egress rule generally covers injuries suffered while an employee is engaged in such action.³⁵ @@@

The court further observed that "'an employee owes a duty of loyalty, faithful service and regard for an employer's interest'" under Georgia law.³⁶ Therefore, when an employee is injured doing what he reasonably thinks is necessary to protect his employer's property, any injury that may occur arises out of his employment and is covered by the Act.³⁷ Based upon the finding that Foster's death arose out of and in the course of his employment, the court held that his survivors' exclusive remedy was under the Act, and the judgment below was reversed.³⁸

In Bossard v. Atlanta Neighborhood Development Partnership, Inc.,³⁹ Kenneth Bossard worked for a subcontractor who was hired by a general contractor to put gutters on an apartment...