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

• Publication year: 2004

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

This survey period brought minimal changes in workers' compensation legislation, but several interesting decisions were issued. Among those decisions are cases confirming the exclusive remedy provisions of the Workers' Compensation Act (the "Act"),¹ a case involving an injury that occurred when an employee was on a lunch break, and several statute of limitations cases.

I. Legislation

Since the enactment of the Americans with Disabilities Act,² the legislature has been discussing whether the Subsequent Injury Trust Fund ("SITF")³ provides any benefits worth the costs assessed against insurers and businesses. Without a great deal offanfare, the legislature passed a bill providing that the SITF shall cease accepting claims for injuries occurring on or prior to June 30, 2008.⁴ Meanwhile, insurers and self-insurers will continue to pay assessments to the SITF to pay for existing claims.⁵ Although the current change in the law calls for the demise of the SITF, a possibility exists that a different course may be taken. The legislature required the SITF to complete an actuarial study to determine its unfunded liability by January 1, 2005.⁶ On December 31, 2020, the SITF is discharged of its duties, except to administer any remaining claims.⁷

The only other significant legislative change during the survey period dealt with guardianship. In workers' compensation claims, guardians are appointed in two situations: if the claimant is a minor child or if the claimant is legally incapacitated.⁸ Since the imposition of limitations on the board's authority to appoint guardians in 1996, the administration of claims involving minors and incompetents has been more problematic.

The 2004 legislature made two amendments to the Official Code of Georgia Annotated ("O.C.G.A.") section 34-9-226⁹ concerning the appointment of guardians in workers' compensation claims.¹⁰ Before the 2004 amendment, only the probate court ofthe county in which the minor child or the incapacitated employee lived could appoint a guardian.¹¹ The amendment now provides for the appointment of an appropriate guardian by "a court of competent jurisdiction outside the State of Georgia."¹²

O.C.G.A. section 34-9-226 also provides for the appointment of temporary guardians in cases settled for less than the statutorily mandated maximum amount.¹³ The 2004 amendment to the code section increased this maximum amount from a net settlement of $25,000 to $50,000.¹⁴

II. Exclusive Remedy Doctrine

The attack on the exclusive remedy doctrine¹⁵ has continued for almost two decades, but the doctrine continues to be an area in which there is clarity and simplicity. One recent decision emphasized that the boundaries of the exclusive remedy doctrine extend to alleged injuries that are not compensable under the Act, so long as the injuries are ancillary to a physical occurrence arising out of and in the course of employment.¹⁶

In Lewis v. Northside Hospital, Inc.,¹⁷ Patricia Lewis and her co-worker were engaged in a heated argument regarding the handling of work-related material when the co-worker either punched or poked Lewis in the back, which resulted in a battery. Both employees were terminated. Lewis sued not only the co-worker but her employer as well, claiming that the employer was liable for negligent retention and respondeat superior. The trial court granted the employer's motion for summary judgment based on the exclusive remedy doctrine.¹⁸

Lewis appealed, arguing that she suffered mental injuries, which are not compensable under the Act, and therefore, her civil action regarding those injuries should not have been barred by the Act's exclusive remedy provision. Historically, nonphysical mental injuries arising out of a physical occurrence have fallen within the purview of the Act for purposes of the exclusive remedy doctrine, while those claims with no connection to a physical injury have not.¹⁹

In Bryant v. Wal-Mart Stores, Inc.,²⁰ the court of appeals held that just because "injuries to . . . peace, happiness, and feelings may not be compensable under the Act does not take those injuries out of the purview of the Act."²¹ The court in Bryant concluded that the nonphys-ical injuries were barred by the exclusive remedy doctrine, even though they were not compensable under the Act.²² A contrary result was reached in Oliver v. Wal-Mart Stores, Inc.,²³ when the injury alleged was exclusively nonphysical, involving libel, slander, and intentional infliction of emotional distress.²⁴ The court concluded that the claims were not barred by the Act's exclusive remedy provisions.²⁵

In Lewis, however, the court of appeals affirmed the trial court's decision.²⁶ Because Lewis was "injured" in a work-related incident involving a physical battery, no matter how slight, and because her claim for nonphysical damages arose out of that battery, the exclusive remedy provision applied and barred her civil suit.²⁷

III. Case Law

A. Appeal to Superior Court

In Fulton County Board of Education v. Taylor,²⁸ the issue was whether the superior court had jurisdiction to remand a case with directions for the court to answer three questions requiring factual findings and to change the award as deemed necessary based on the three answers.²⁹ Before the superior court heard the case, the administrative law judge ("ALJ") found the claimant had conducted a diligent job search, and medical benefits and attorney fees were due. The appellate division substantially revised the factual findings and partially reversed the ALJ's award. Thus, both parties appealed to superior court.³⁰ Being dissatisfied with the superior court's direction, the court of appeals granted Fulton County Board of Education's appeal.³¹

Before reaching the substantive matters of the actual case, the court of appeals had to first determine if it had jurisdiction to hear the appeal.³² Because the superior court's order did not explicitly set aside the appellate division's award, some debate existed concerning whether the award was appealable.³³ The court resolved this dilemma by noting that the superior court's order effectively set aside the appellate division award and that the superior court did not explicitly retain jurisdic-tion.³⁴ Thus, the court of appeals concluded that it did indeed have jurisdiction over Fulton County Board of Education's appeal.³⁵

Fulton County Board of Education argued that the appellate division's award was supported by the proper evidentiary standard, and thus, under the "any evidence" rule,³⁶ the superior court was not authorized to set aside those findings by seeking to elicit unnecessary factual findings that had already been resolved by portions of the award.³⁷ The court of appeals agreed with this argument and determined that "[t]he superior court erred to the extent that it sought . . . to elicit additional factual findings on issues that had already been resolved by the portion[s] of the appellate division award that denied . . . disability benefits and assessed attorney fees."³⁸

The court of appeals affirmed the superior court's implicit setting aside of the portion of the appellate division's award that ordered payment of certain medical expenses.³⁹ The court concluded that the evidence did not support the appellate division's stated rationale on the issue of authorized medical expenses.⁴⁰ Thus, although the superior court ostensibly had the power under O.C.G.A. section 34-9-105(d)⁴¹ to remand a case "to the board for further hearing or proceedings in conformity with the judgement and opinion of the court,"⁴² the court of appeals pointed out that such remand is clearly limited.⁴³ A remand by the superior court must be only within the framework of the "any evidence" standard or the five statutory grounds for error⁴⁴ that are applicable to superior court appeals.⁴⁵

In another case concerning a remand by the superior court, the court ofappeals again addressed the limited basis for remand by the superior court.⁴⁶ In Moffitt Construction, Inc. v. Barnes,⁴⁷ the claimant injured his lower back in January 2000. He was paid temporary disability benefits for his injury. In July 2000 the employer suspended benefits, alleging that the claimant had experienced an improvement in his condition. The claimant objected, and a hearing was held. After the hearing the ALJ issued a decision finding that the employer met its burden of proving a change in condition for the better and allowed the suspension of benefits to stand. As part of the award, the ALJ ordered both parties to agree on a new neurosurgeon to evaluate the claimant.⁴⁸

The claimant appealed the ALJ's decision, and while the appeal was pending, the parties agreed upon Dr. Franklin Epstein to evaluate the claimant. The doctor evaluated the claimant on April 10, 2002. The oral argument on the appeal was heard May 8, 2002. At that argument the claimant sought to have the appellate division consider the report of Dr. Epstein. The appellate division denied the claimant's request that Dr. Epstein's report be considered and affirmed the ALJ's decision on July 5, 2002. The appellate division did not believe Dr. Epstein's report was "newly discovered evidence" that it should consider, and therefore, the court concluded that if the claimant chose to use the report, he could seek another hearing to allege a change in condition for the worse.⁴⁹

The superior court determined that the appellate division erred in refusing to consider Dr. Epstein's report.⁵⁰ The superior court reasoned that the case should be remanded to the appellate division because the ALJ's decision was largely based on a medical report "'that was subsequently contradicted completely'" by Dr. Epstein.⁵¹ The superior court issued an order that the appellate division consider Dr. Epstein's report as "newly discovered evidence" and instructed the appellate division to redetermine what weight the report of...