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

• Publication year: 2006

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

I. Legislation

There was minimal legislation during the 2006 term of the Georgia General Assembly that impacted workers' compensation. In fact, most of the legislative changes could be characterized as general housekeeping measures. For example, Official Code of Georgia Annotated ("O.C.G.A.") section 34-9-104¹ was changed to make its wording consistent with that found in other sections of the Workers' Compensation Act.² The mandate that the employee shall receive notice from the employer was changed to provide that the employer shall send notice to the employee.³ The time limit for submitting mileage expenses was clarified as running one year from the date that the mileage was incurred.⁴ Also, the total compensation payable to a surviving spouse as a sole dependent at the time of death was increased from $125,000 to $150,000.⁵

Probably the most significant amendment impacting workers' compensation was actually not an amendment to the Workers' Compensation Act. Instead, the amendment was to the Patient Self-Referral Act.⁶ The legislature enacted the Patient Self-Referral Act in 1993 based upon the premise that the "referral of a patient by a health care provider to a provider of designated health care services in which the health care provider has an investment interest represents a potential conflict of interest."⁷ Georgia's Patient Self-Referral Act was generally modeled after the federal law commonly referred to as the Stark Act.⁸

The Patient Self-Referral Act prohibits referral arrangements, including the obvious ownership interest and even profit-sharing arrangements where any consideration is paid for the referral.⁹ There also are a number of specific exceptions to the patient referral prohibition. Until this year, one of those exceptions was for physicians treating workers' compensation patients.¹⁰ That exception was deleted in its entirety by the 2006 General Assembly,¹¹ thereby making the Patient Self-Referral Act applicable even in the context of workers' compensation.

II. Recent Cases

A. The Exclusive Remedy Doctrine

The exclusive remedy doctrine provides that an employee who suffers an injury that arises out of and in the course of employment is barred from seeking any remedy against his employer outside the parameters of the Workers' Compensation Act.¹² This doctrine remains a corner- stone of the workers' compensation system, and Georgia's appellate courts continue to uphold it.

As a fundamental threshold requirement for the application of the exclusive remedy provision, an employer-employee relationship must exist.¹³ In Chapman v. C.C. Dickson Co.,¹⁴ on the day the employee's employment was terminated, the employee, Chapman, received permission to use the company's truck to take home personal belongings. However, before Chapman left, he fell and was injured. Chapman brought suit, alleging that the company was negligent, and the company moved for summary judgment on grounds that (1) the Workers' Compensation Act was Chapman's exclusive remedy because he was still an employee when he fell and (2) the company was not negligent because it did not have any notice of the dangerous condition that caused Chapman's fall. The trial court granted the company's motion and Chapman appealed.¹⁵ The Georgia Court of Appeals affirmed the trial court's grant of summary judgment on the ground that there was no evidence that the company was negligent.¹⁶ Because there was no evidence that the company was negligent, the court of appeals did not reach the question of whether Chapman was still an employee at the time he fell.¹⁷

However, in Lambert v. Briggs & Stratton Corp.,¹⁸ the court addressed the specific extension of the exclusive remedy provision to businesses utilizing the services of certain "temporary help contracting firms" for employee leasing arrangements.¹⁹ The plaintiff in that case was a Talent Tree Staffing employee who was contracted out to Briggs & Stratton at the time she was injured at the defendant's manufacturing facility.²⁰ The court rejected the argument that there must be evidence that the defendant exercised direct supervision over the plaintiff at the time of her injuries.²¹ Instead, the court found that the mere presence of a leased employee or temporary employee situation, coupled with satisfaction of the other jurisdictional requirements for workers' compensation coverage, was sufficient to extend the exclusive remedy provision to all parties involved.²²

Similarly, in Apperson v. Southern States Cooperative,²³ an employer deducted premiums for the purpose of providing workers' compensation coverage to an independent contractor. After the independent contractor was injured on the job, he applied for and received workers' compensation benefits and later brought an action against the employer sounding in tort.²⁴ The court stated that it is well-settled law that "when an employer of an independent contractor provides workers' compensation insurance to [the independent contractor], the independent contractor is estopped from denying coverage and seeking damages in tort."²⁵ Accordingly, the court granted the defendant-employer's motion for summary judgment.²⁶

In Theesfeld v. Image Electrolysis & Skin Care, Inc. ,²⁷ the plaintiff in a tort action alleged that she was an independent contractor at the time that she was injured. In response, the defendant filed a motion for summary judgment, contending that the plaintiff had not only filed a claim for workers' compensation benefits, but also that the claim had been settled. Therefore, the defendant argued that the plaintiff's suit was barred by the exclusive remedy provisions of the Workers' Compensation Act. The trial court granted summary judgment on this ground.²⁸ On appeal, the court stated that when compensation is paid pursuant to a settlement of a workers' compensation claim, any subsequent tort suit by the injured party is barred by the exclusive remedy provision.²⁹ However, in this case, there was no evidence in the record that compensation was paid pursuant to a settlement agreement approved by the Georgia Workers' Compensation Board (the "board").³⁰ Nonetheless, the court of appeals affirmed the grant of summary judgment on other grounds.³¹

There are exceptions to the exclusive remedy doctrine, but they are not always viable as a way to hold the employer vicariously liable. In Crisp Regional Hospital, Inc. v. Oliver,³² an employee, Oliver, sustained a back injury while working as a custodian for Crisp Regional Hospital. The hospital provided medical care benefits for the injury by sending him to its own medical clinic for treatment. Oliver sued the hospital in tort, alleging vicarious liability for the negligence of its employees in providing treatment. The hospital raised the exclusive remedy statute as a bar to the tort claim.³³ The trial court ruled that while the exclusive remedy provision would bar the claim based upon the alleged negligence of nonprofessional administrative employees, it would not bar the claims based upon the alleged negligence of professional employees, such as physicians and nurses.³⁴ The court of appeals reversed, holding that there is no exception to the exclusive remedy provision for alleged professional negligence.³⁵ The court noted that the exclusive remedy provision does not bar an action against an individual physician for professional negligence when the physician is a co-employee of the injured employee.³⁶ However, there is no basis for a tort action seeking to impose vicarious liability for the negligence of the employer of both the injured claimant and the professional co-employee.³⁷

It has long been the law that an employee injured at work by the intentional tort of a co-employee may assert a common law cause of action for damages against the co-employee where there is no remedy for the conduct provided by the Workers' Compensation Act.³⁸ This is particularly true where there are allegations of sexual harassment. While sexual harassment by a coworker may occur in the course of employment, the conduct is almost always for purely personal reasons unrelated to the furtherance of the employer's business. Thus, it typically does not arise out of employment, which means that is not covered under the Workers' Compensation Act.³⁹

In Travis Pruitt & Associates, P.C. v. Hooper,⁴⁰ the employee alleged that she was a victim of a co-employee's sexual harassment and filed suit against the employer, alleging that it was liable under principles of respondeat superior and ratification.⁴¹ The trial court denied the employer's motion for summary judgment.⁴² On appeal, the court reversed the trial court's judgment.⁴³ The reversal was based in part upon the observation that the same facts that established that the employee had a common law cause of action also established that the employer could not be held liable on the basis of respondeat superior for the alleged tortious conduct of the plaintiff's co-employee.⁴⁴

B. Aggravation of Pre-existing Condition

In Georgia Pacific Corp. v. Cross,⁴⁵ the appellate court held that aggravation of the employee's "'work-related arthritic condition,'" stemming from a 1995 occupational exposure to sulfuric acid, was compensable.⁴⁶ The board found that the employee's last day of work on January 4, 2002 amounted to a "'new injury.'"⁴⁷ The employee, Cross, had been exposed to sulfuric acid on August 22, 1995, and he suffered effects from it until 2002, missing some time from work in 1995 and again in 2000 and 2001. Cross's doctor diagnosed him with an autoimmune disorder, which the doctor concluded was caused by Cross's exposure to sulfuric acid in 1995. Cross stopped work on January 4, 2002, and on January 28, 2002, he filed a workers' compensation claim against his employer, Georgia Pacific.⁴⁸ Georgia Pacific contended, inter alia, that Cross's claim for an "occupational injury" was...