Workers' Compensation - H. Michael Bagley, Daniel C. Kniffen, John G. Blackmon, Jr., and Katherine D. Dixon
| Publication year | 1997 |
Workers' Compensationby H. Michael Bagley* , Daniel C. Kniffen** , John G. Blackmon, Jr.*** and Katherine D. Dixon****
The 1996-1997 survey period was an active one in the field of workers' compensation. Significant decisions were handed down in a number of areas that will significantly impact important parts of the workers' compensation system.
The first section of this Article reviews what, by comparison to previous years, was a relatively mild legislative session with regard to workers' compensation. The next two sections address important cases that affect the Drug-Free Workplace Act1 and the defense of cases involving intoxication as well as important cases involving a claimant's burden of proof to show a change in condition. The remainder of the Article summarizes other important decisions by subject area.
I. Workers' Compensation Legislation 1997
As compared with other legislative sessions during this decade, the 1997 Session of the Georgia General Assembly did not generate significant changes in the Workers' Compensation Act.2 Most changes would be labeled "house-keeping" changes, which do not significantly impact substantive rights or procedures.
A. Civil Penalties and the Costs of Collection
The Workers' Compensation Act was refined to specifically include attorney fees in the recoverable collection costs of civil penalties resulting from a failure to follow any order or directive issued by the State Board of Workers' Compensation ("the Board").3
B. Fraud Investigation
The Board is staffed with fraud investigators empowered with the authority to execute search warrants, make arrests, and issue subpoenas.4
C. Regulation of Third-Party Administrators
The Board is empowered to promulgate rules and regulations to set forth requirements for third-party administrators and servicing agents, including insurers acting as third-party administrators or servicing agents, regarding their management or administration of workers' compensation claims.5 For example, this provision gives the Board the authority to directly fine third-party administrators and servicing agents when they fail to follow provisions of the Workers' Compensation Act or Board rules.6 Additionally, the third-party administrators and servicing agents must demonstrate to the Board's satisfaction that they are duly licensed and in full compliance with all applicable requirements of Title 33, the Georgia Insurance Code.7
D. Catastrophic Injury Defined
The definition of catastrophic injury was amended to require that a claimant show both the inability to do the job performed prior to the injury and the inability to perform other work in the national economy, not just either one of those criteria.8
E. Indemnity Benefits
The maximum temporary total disability benefits were increased from $300 per week to $325 per week.9 Maximum temporary partial disability benefits were increased from $192.50 to $216.67 per week.10
II. Employee Refusal of Drug Testing After Injury
Undeniably, drug and alcohol use increases the rate and severity of workplace accidents.11 Drug testing programs have become prevalent since President Ronald Reagan issued an executive order creating a mandatory urine testing program for federal workers and set the trend for drug testing by private employers.12
In 1993 the Georgia General Assembly enacted the Drug-Free Workplace Programs Act as an integral part of the Workers' Compensation Act.13 In many respects this Act is similar to the Federal Drug-Free Workplace Act.14 The Georgia General Assembly's stated intent was to promote drug-free workplaces to help employers maximize their productivity levels, enhance their competitive positions in the marketplace, and reach their desired levels of success without experiencing the costs, delays, and tragedies associated with work-related accidents resulting from employees' substance abuse.15 The Act encourages employers to implement a drug-free workplace program by rewarding employers achieving certification as a Drug-Free Workplace with a workers' compensation insurance premium discount.16 The statutory conditions precedent to certification as a Drug-Free Workplace include a written policy statement, testing procedures established in accordance with statutory guidelines, an employee assistance program, an employee education program, a supervisor training program, and confidentiality standards.17
Once certified, the threshold condition for implementation is notice. Prior to testing, all employees and job applicants must be given notice of the testing policy at least one time.18 In addition, employees and job applicants must be provided with a written policy statement containing, among other things, "the actions the employer may take against an employee or job applicant on the basis of a positive confirmed test result"19 and "the consequences of refusing to submit to a drug test."20 One consequence should be that either event may affect the employee's right to workers' compensation benefits. The employer must post the substance abuse testing policy on vacancy announcements in a conspicu- ous location on the employer's premises, and copies of the policy must be made available for inspection by employees or job applicants during regular business hours in the employer's personnel office or another suitable location.21
The Drug-Free Workplace Programs Act is not an isolated provision of the Workers' Compensation Act. For example, the Drug-Free Workplace Programs Act sets out specific guidelines regarding when employees are subject to testing as well as proper methods of collection, storage, and analysis of specimens.22 Recovery under the Workers' Compensation Act is barred for any injury that is the proximate result of intoxication by drugs or alcohol.23 Furthermore, Official Code of Georgia Annotated ("O.C.G.A.") section 34-9-17(b)(3) creates a rebuttable presumption against compensability of an on-the-job injury if the employee makes an unjustified refusal to submit to a post-accident drug test conducted in compliance with the Drug-Free Workplace Programs Act.24
The applicability of the rebuttable presumption when there has not been full compliance with the Drug-Free Workplace Programs Act was the issue in Thomas v. Diamond Rug & Carpet Mills.25 The court of appeals addressed whether an employee of a self-insured employer, who had not established a drug-free workplace program, may be denied workers' compensation benefits under O.C.G.A. section 34-9-17(b)(3) based on the employee's refusal to submit to a drug test following an on-the-job injury if the employee had not received notice of the consequences of the refusal pursuant to O.C.G.A. section 34-9-414.26
The claimant in Thomas drove a forklift into a wall, causing injuries to his left foot and ankle. Less than an hour before the accident, a supervisory employee observed Thomas smoking what appeared to be a marijuana pipe. A registered nurse at the hospital where treatment was provided asked claimant to provide a urine specimen for the workers' compensation drug screen test. Claimant refused this request and three similar requests made during the week he was hospitalized, despite his admission of his awareness that the employer required workers to submit to drug testing after a work-related injury and that he could be terminated for refusing. Thomas claimed, however, that he had not been told his refusal could result in the denial of workers' compensation benefits.27
The Administrative Law Judge ("ALJ") denied benefits. The appellate division of the Board and the superior court affirmed.28 The court of appeals reversed and remanded the denial of workers' compensation benefits arising from claimant's refusal to take a drug test, holding that the presumption in O.C.G.A. section 34-9-17(b)(3) is not applicable if the employee was not notified that it would affect his right to obtain benefits.29 The court reasoned that because the presumption provision incorporates O.C.G.A. section 34-9-415 by reference, the entire Drug-Free Workplace Programs Act should be incorporated because of a catchall provision in section 34-9-415(a), which provides that "all testing conducted by an employer shall be in conformity with the standards and procedures established in this Article and all applicable rules adopted by the State Board of Workers' Compensation pursuant to this Article."30
The court's reasoning renders meaningless the language in O.C.G.A. section 34-9-17(b)(3) that incorporates only the portion of the Drug-Free Workplace Programs Act defining the type of "reliable, scientific test" that must be offered and rejected in order to trigger the rebuttable presumption. This reasoning arguably distorts the meaning of the statute, thereby violating the rule of construction requiring that a statute be interpreted to give meaning to all of its parts.31
Although this comment apparently did not form the basis for the holding, the court also noted that "fundamental standards of due process require that the employee be given notice" that the refusal to submit to the drug test may bar recovery of workers' compensation benefits.32 The court also made reference without explanation to "the equal protection of laws."33 Because no government or state action was involved, but only the rights of an employee against a private employer, the application of these constitutional principles would have been novel and unique.34 Even if the drug test had been requested within the framework of the Drug-Free Workplace Programs Act in addition to the Workers' Compensation Act, extensive government regulation alone does not convert actions of a private business into state action for purposes of a constitutional analysis.35
While the holding in Thomas is difficult to reconcile with the plain statutory language,36 all employers in Georgia, whether participants, non-participants, or exempt from the Drug-Free Workplace Programs Act, must fully comply to invoke the...
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