Workers' Compensation - H. Michael Bagley and J. Benson Ward

• Publication year: 2009

Workers' Compensationby H. Michael Bagley^* and J. Benson Ward^**

There were minimal legislative changes during the survey period from June 1, 2008 to May 31, 2009, but several interesting decisions were issued by the Georgia Court of Appeals.¹ Among those were cases affirming the exclusive remedy doctrine, a case providing insight on the applicability of statutory employment when the general contractor is an owner in possession of the property, and several statute of limitations cases.

I. Legislation

There were no legislative changes of major significance during the survey period with the exception of refinements in the legislative package prepared by the Georgia State Board of Workers' Compensation (Board) under the leadership of Judge Carolyn Hall, the chair of the Board.²

Addressing the notice provisions for workers' compensation awards, sections 34-9-102(f)³ and 34-9-103⁴ of the Official Code of Georgia Annotated (O.C.G.A.) were modified to require that notice of an award be sent to the "counsel of record" to satisfy the service requirement for

"issuance" of notice of the award so that the twenty-day appeal period commences.⁵

The collection of medical records is a fundamental part of all workers' compensation litigation and can be a contentious matter in some instances. To end the recent debate over whether O.C.G.A. Sec. 34-9-207⁶ applies to records generated before an on-the-job injury, the statute was modified to clarify that the "waiver shall apply to the employee's medical history with respect to any condition or complaint reasonably related to the condition for which such employee claims compensation."⁷ The code section was also modified to make it clear that the waiver applies whether or not a hearing has been requested⁸ and that the Board will be the final arbiter of compliance or non-compliance.⁹

Section 34-9-121 of the O.C.G.A.¹⁰ was amended so that employers in the construction industry will comply with mandatory requirements for workers' compensation insurance when insurance coverage is issued under the laws of another state to employers engaged in the construction industry in Georgia, so long as the state of issuance reciprocates.¹¹

Section 34-9-223 of the O.C.G.A.¹² allows payment of a lump sum to a trustee appointed by a superior court in expedient situations,¹³ such as those involving minors or the mentally incompetent, and the code section was modified to make clear that this procedure also applies to settlements.¹⁴

ii. APPEALS

In Holder v. City of Atlanta,¹⁵ the employee challenged an order of the superior court denying his demand for judgment on an agreement, approved by the Board, that settled his compensation claim. On January 25, 2007, the Board approved an agreement settling the claimant's workers' compensation claims based on injuries sustained while employed by the City of Atlanta. The city challenged this agreement in the superior court, arguing that a nearly identical agreement was entered two days prior.¹⁶

On May 25, 2007, the superior court held a hearing on the issue but did not enter an order remanding the case to the Board to resolve factual disputes until June 25, 2007, some thirty-one days later. Finally, on December 21, 2007, the claimant filed in the superior court a "Corrected Demand for Judgment" asking the court to enforce his January 25, 2007 agreement. The superior court denied his demand, citing its earlier order remanding the case to the Board.¹⁷

On appeal, the employee contended that the superior court lacked jurisdiction to remand the case to the Board because the Board failed to comply with the statutory time frame established under O.C.G.A. Sec. 34-9- 105(b),¹⁸ and the court of appeals agreed.¹⁹ Under O.C.G.A. Sec. 34-9- 105(b), the superior court must hear an appeal from a decision by the Board within sixty days from the date of docketing.²⁰ If the superior court fails to hear the appeal within sixty days, the Board's decision "shall be considered affirmed by operation of law."²¹ Similarly, even if the appeal is heard within sixty days, the superior court's failure to enter judgment within twenty days of the date of hearing renders the Board's decision affirmed by operation by law.²²

In Holder the employee did not challenge the time frame in which the superior court heard the case but, rather, challenged the court's failure to enter judgment within twenty days.²³ Georgia courts have repeatedly held that under O.C.G.A. Sec. 34-9-105(b) "'the legislature conferred a limited jurisdiction on the superior courts to review the decisions of the . . . Board.'"²⁴ Under these interpretations, a failure to comply with the statutory terms removes jurisdiction from the superior court.²⁵ In Holder the superior court entered the order thirty-one days after the hearing and, thus, failed to comply with O.C.G.A. Sec. 34-9-105(b).²⁶ "Accordingly, the decision of the Board approving the settlement agreement 'was affirmed by operation of law on the twenty-first day after the hearing, and the superior court lost jurisdiction to enter any order.'"²⁷ As such, the superior court's denial of the claimant's "Corrected Demand for Judgment" was reversed.²⁸

III. Burden of Proof

In Parham v. Swift Transportation Co.,²⁹ a claimant suffered renal failure, and both his employer and his group health insurer rejected his claim. The employer contended that the renal failure was not job-related, but his group health insurer claimed that the injury sustained was indeed related to the employment.³⁰

The administrative law judge (ALJ) found that the employer was liable under the Workers' Compensation Act (WCA).³¹ While the appellate division of the Board affirmed the award, the superior court reversed and held that the claimant failed to meet his burden of showing that the renal failure arose from his employment.³² The burden is on the employee to show that a sustained injury is compensable under the WCA.³³

The claimant testified that he was unloading a trailer for approximately ten hours in humid ninety-degree weather. Roughly around midday, the claimant stated that he felt the heat was beginning to affect him physically; he wanted to drink a lot of water and felt very weak. Around 5:30 a.m., he finally reached the point when he felt he needed medical assistance, so he alerted his supervisor and was directed to go to Greenville Memorial Hospital.³⁴

The medical records revealed that the claimant was weak and fatigued with a fever of 102 degrees. His urinalysis revealed a likely urinary tract infection (UTI) and acute renal failure. The medical records noted that he reported he had been working in hot and humid weather for the past two days and had become fatigued. A renal ultrasound showed nothing unusual, and during a three-day stay at the hospital, his renal failure resolved. The discharging physician noted that no definitive cause of the UTI or renal failure could be found.³⁵ The physician noted, "It is possible that the patient had some renal failure secondary to his extreme labor in the hot weather," and the claimant was released from the hospital.³⁶

After the claimant testified, the ALJ found him very credible, and thus, the ALJ awarded the claimant workers' compensation benefits.³⁷ The superior court, on the other hand, relied on Globe Indemnity Co. v. Simonton³⁸ and concluded that the claimant failed to show that his injury was caused by work conditions and activities.³⁹

The court of appeals held that the instant case was distinguishable from Globe because "the claimant presented evidence regarding his level of exertion at the time he fell ill" and testified that "the exertion caused his hospitalization."⁴⁰ The court held that the evidence supported the ALJ's findings.⁴¹ The court also noted that the claimant never experienced renal failure in the past, that his renal failure subsided after a three-day stay in the hospital, and that nothing in the medical records indicated his renal failure was the result of anything else.⁴²

Relying on the well-established "any evidence" rule,⁴³ the court of appeals held, "As the trier of fact, the ALJ was free to determine what portions of the evidence he would consider, what weight such evidence would be given, and the credibility of any witnesses or testimony."⁴⁴ Thus, the superior court's judgment was reversed.⁴⁵

IV. Course of Employment

In Harris v. Peach County Board of Commissioners,⁴⁶ Wendy Harris, a Peach County courthouse custodian, dislocated her knee while bending over to pick up a pill from the floor. The pill belonged to her and had fallen out of her pocket.⁴⁷ Harris was awarded workers' compensation benefits for her injury by the Board based upon its finding that bending over to retrieve a foreign object from the floor was among the "peculiar duties of [her] job as a custodian,"⁴⁸ and consequently "that Harris's injury arose out of and in the course of her employment."⁴⁹ The award was reversed by the superior court on the ground that Harris's injury did not arise in any part from her employment but instead was a result of her obesity.⁵⁰ The court of appeals reversed the superior court's decision, holding that the claim was compensable under the WCA.⁵¹

The court of appeals acknowledged the mandatory deference required on appeal to any findings made by the Board that are supported by any evidence, and the court reinstated the Board's finding that Harris was performing her job duty as a custodian at the time of her injury.⁵² The court held that it was her duty to clean and remove debris from the floor.⁵³ Thus, the court concluded that when Harris's pill fell from her pocket, it was her duty to remove the pill from the floor, just as it would have been had it fallen from someone else's pocket.⁵⁴ Therefore, any injury resulting from removing the pill was an injury arising in the course of employment.⁵⁵ The fact that Harris's obesity contributed to the injury did not change the fact that Harris was performing her job duties when...