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

• Publication year: 2007

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

I. Legislation

The year 2007 was relatively quiet for workers' compensation legislation in the Georgia General Assembly. However, there were several statutory modifications of note.¹

The Georgia Workers' Compensation Act² has long excluded "farm laborers" from its coverage.³ The scope of that exclusion was clarified by including within the term farm laborer "any person employed by an employer in connection with the raising and feeding of and caring for wildlife, as such term is defined in paragraph (77) of [Official Code of Georgia Annotated ("O.C.G.A.")] Section 27-1-2."⁴ The Code section referenced defines wildlife as "any vertebrate or invertebrate animal life indigenous to this state or any species introduced or specified by the board and includes fish, except domestic fish produced by aquaculturists registered under [O.C.G.A.] Section 27-4-255, mammals, birds, fish, amphibians, reptiles, crustaceans, and mollusks or any part thereof."⁵ During the legislative session, this was commonly referred to as the "Alligator Farm" amendment.⁶

Since 1985 claims that were not being prosecuted—those evidenced by the absence of any hearing being conducted for a period of at least five years—were deemed to "automatically stand dismissed."⁷ This provision was modified for any injuries occurring on or after July 1, 2007.⁸ Any claim filed with the Georgia State Board of Workers' Compensation (the "Board") after that time, for which neither medical nor income benefits have been paid, shall "stand dismissed with prejudice by operation of law if no hearing has been held within five years of the alleged date of injury."⁹ This provision applies to all claims except certain and specified occupational disease claims.¹⁰

In another housekeeping modification to the Workers' Compensation Act, the General Assembly clarified the provisions for independent medical evaluations.¹¹ These provisions have long required that the employee submit to an examination "by a duly qualified physician or surgeon."¹² The legislature clarified that the evaluation "may include physical, psychiatric, and psychological examinations."¹³

Similarly, the Board's power to approve the fees of medical providers was clarified to affirmatively include "charges for prescription drugs, and charges for other items" in addition to the fees of physicians and charges of hospitals.¹⁴

Effective July 1, 2007, the maximum rate for temporary total disability benefits was increased from $425 to $500 per week,¹⁵ and the maximum rate for temporary partial disability benefits was raised from $284 to $334 per week.¹⁶

II. Authorized Medical Care

Perhaps the most fundamental benefit afforded to injured workers under the Workers' Compensation Act is the provision of medical care, and there are mutual obligations and rights imposed by law on both the employer and the employee. In Goswick v. Murray County Board of Education,¹⁷ the employee suffered an injury that was accepted as compensable under the Workers' Compensation Act. Subsequently, the employee ceased attending medical appointments for an extended period of time. In an effort to force the employee to appear, the employer attempted to schedule an examination with the authorized treating physician utilizing the independent medical evaluation provisions. However, the employee refused to appear at the examination, and following a hearing, an administrative law judge ("ALJ") ordered him to attend an examination. The employee again refused, contending that the independent medical evaluation provisions of the Workers' Compensation Act did not apply to authorized treating physicians. At a second hearing, the ALJ ordered the suspension of income benefits for the employee's failure to attend the independent medical evaluation, and the appellate division adopted that award.¹⁸ The superior court and the court of appeals affirmed.¹⁹ The court of appeals based its decision on the fact that the plain language of O.C.G.A. section 34-9-202²⁰ required only "that the examining physician be duly qualified, not that the physician be independent nor that the physician not be treating the claimant."²¹

III. Workers' Compensation Managed Care Organization

One of the vehicles rarely used by employers to satisfy their obligation to provide medical treatment for compensable injuries under the Workers' Compensation Act is a Workers' Compensation Managed Care Organization ("WC/MCO").²² One of the features of a WC/MCO is that it has unique provisions for the resolution of disputes. In Metropolitan Atlanta Rapid Transit Authority v. Reid,²³ an employee who had suffered a compensable injury was receiving treatment through his employer's WC/MCO. He became dissatisfied with the treatment he was receiving and applied to the Board for a change of physician.²⁴ While the Board is vested with general authority to order a change of physician under O.C.G.A. section 34-9-200(b),²⁵ Board rules regarding WC/MCOs specifically require that "'[d]isputes which arise on an issue related to managed care shall first be processed without charge through the dispute resolution process of the WC/MCO.'"²⁶ In this case, the employee's request for a change of physician was granted without first utilizing the WC/MCO's internal dispute resolution process, and the employer objected.²⁷ On appeal, the court of appeals affirmed based primarily upon the following observation:

In its order affirming the ALJ, the appellate division interpreted the requirements of [O.C.G.A. section] 34-9-200(b) and found that the Board had jurisdiction to order a change of physician under the statute. Though this interpretation may conflict with the Board's own internal published rules, i.e., Board Rule 208(f), the interpretation of a statute by an administrative agency charged with enforcing its provisions is given great deference, unless contrary to law. We defer to the Board's interpretation that [O.C.G.A. section] 34-9-200(b) does not require [the employee] to exhaust the dispute resolution process of the WC/MCO before petitioning the Board for a change in physician.²⁸

IV. The Exclusive Remedy Doctrine

Having long been one of the fundamental principles of the Workers' Compensation Act, the exclusive remedy doctrine was challenged again during this survey period. In Freeman v. Barnes,²⁹ the widow of a Fulton County superior court judge who was killed by an escaped prisoner filed an action for her husband's wrongful death against the county sheriff and a number of his deputies due to their gross negligence. The sheriff moved to dismiss on a number of grounds, including the exclusive remedy provision of the Workers' Compensation Act. The trial court rejected the exclusive remedy claim.³⁰ The court of appeals affirmed in a split decision.³¹ Two judges ruled that a superior court judge is an employee of the state and not a county.³² Consequently, the judge and the sheriffwere not employees ofthe same employer, and the exclusive remedy provision ofthe Workers' Compensation Act would not apply.³³

In Stevenson v. Ray,³⁴ a sheriff's deputy and his wife filed suit against the deputy's co-worker asserting claims for personal injury and loss of consortium after an automobile collision during a police chase. They argued that the exclusive remedy provision did not apply because while the co-worker was employed by the same employer, the co-worker was off duty and had been advised by his supervisor against any active involvement in the chase. The co-worker disregarded that directive and was then involved in the motor vehicle accident with the plaintiff deputy.³⁵ The court of appeals held that because the plaintiff and the defendant were both police officers, they were both on call, and therefore, they were both in the course of their employment at the time of the motor vehicle accident.³⁶ Consequently, the injuries arose out of and in the course of the co-workers' employment with the same employer.³⁷ It was thus proper for the superior court to grant the defendant's motion for summary judgment based upon the exclusive remedy provision of the Workers' Compensation Act.³⁸

In Burns International Security Services Corp. v. Johnson,³⁹ the parents of a security guard brought a wrongful death action against the deceased security guard's employer. The security guard had been assigned to a job that posed a high security risk to the guard, and she was not provided with a weapon or any other means of protection, nor was she furnished with any form of mobile communication. The security guard did not return from patrol one evening, and nearly three weeks later, she was found dead on the assigned property.⁴⁰ The trial court denied the employer's motion for summary judgment, and the court of appeals reversed, holding that "the trial court erred by failing to conclude that [the security guard's] death arose out of and in the course of her employment."⁴¹ The court determined that the uncontroverted evidence—that the security guard's personal items were never retrieved, her body was discovered on the property, and she had been deceased for two weeks, perhaps longer—demonstrated that the death occurred within the period of her employment with the defendant.⁴² Thus, the court held that the "remedy, if any, lies exclusively under the provisions of the Workers' Compensation Act, and the trial court should have granted summary judgment."⁴³

V. Ancillary Jurisdiction Over Coverage Disputes

The Board has ancillary authority to resolve insurance policy coverage issues when determining an employee's rights under the Workers' Compensation Act.⁴⁴ In Royal Indemnity Co. v. Georgia Insurers Insolvency Pool,⁴⁵ the employee suffered a compensable claim that was accepted by his immediate employer's insurer, but a number of years later, the insurer became insolvent, and the Georgia Insurers Insolvency Pool (the "Insolvency Pool") began paying benefits to...