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

• Publication year: 2001

Workers' Compensationby H. Michael Bagley^*

Daniel C. Kniffen^** Katherine D. Dixon^*** and

Marion Handley Martin^****

I. Introduction

The 2000-2001 survey year was notable yet again for the number of cases decided by the appellate courts, on a variety of issues, from burden of proof to subrogation. Additionally, as is customary, the legislature made several changes in the Workers' Compensation Act, all of which are set out below. The Governor's Special Commission, appointed more than a year ago to study Georgia's workers' compensation system, officially concluded in April 2001, but has not yet issued a report on its findings.

II. Legislation

The 2001 General Assembly made several amendments to the Georgia Workers' Compensation Act ("the Act").¹ Although none of the 2001 amendments can be considered as significant as some of the dramatic changes in the last decade, a number of these amendments specifically impact the litigation of workers' compensation cases and are required reading for practitioners in this area.

A. Interest on Awards

Any final award of the State Board of Workers' Compensation ("the Board") bears interest at the legal rate.² The Official Code of Georgia Annotated ("O.C.G.A.") section 34-9-107 was amended to increase the interest on awards from seven to twelve percent on all accrued amounts and on all amounts accruing prior to final judgment in the event of an appeal being taken from the Board.³ This rate is consistent with the rate on other judgments entered in other Georgia courts.⁴

B. Litigation Expenses

Modeled after the provisions applicable in civil litigation for assessment of litigation costs for frivolous actions and defenses,⁵ O.C.G.A. section 34-9-108(b) was amended to provide for the assessment of reasonable litigation expenses against the offending party, in addition to assessed attorney fees, upon a determination that any proceeding has been unreasonably brought, prosecuted, or defended.⁶ This may be a slightly less rigorous standard than the threshold requirement for the assessment of costs by Georgia courts in civil litigation that requires a showing that the offending party has "asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position."⁷

O.C.G.A. section 34-9-108(b) limits reasonable litigation expenses to witness fees, mileage, reasonable expert witness fees, reasonable deposition transcript costs, and the cost of the hearing transcript.⁸

This provision may alter the dynamics of the Georgia Workers' Compensation system; one that places a premium on simplicity and efficiency. For example, O.C.G.A. section 34-9-102(e) facilitates the admissibility of medical reports by providing an exception to the rules of evidence that allow written medical records to be submitted in lieu of live testimony, thereby streamlining proceedings.⁹ The ability to assess costs may tend to shift the system from one of simplicity and efficiency to a system where the threat of "costs" will be used to protract litigation.

C. Posted Panel of Physicians

The number of physicians on a traditional Posted Panel of Physicians was increased from four to six, unless the Board grants an exception to an employer who demonstrates that more than four physicians is not reasonably accessible.¹⁰ This amendment to O.C.G.A. section 34-9-201(b)(1) becomes effective January 1, 2002.¹¹

D. Claimant's Independent Medical Evaluation

O.C.G.A. section 34-9-202(e), was amended to provide that employees are now entitled to one medical examination within 120 days of receipt of income benefits, instead of the previous sixty days.¹²

E. Temporary Total Disability Benefits

O.C.G.A. section 34-9-261 was amended to increase the maximum temporary total disability benefits from $375 per week to $400 per week, while simultaneously increasing the minimum temporary total disability benefit from $37.50 per week to $40 per week.¹³

F. Temporary Partial Disability Benefits

O.C.G.A. section 34-9-262 was amended to increase the maximum temporary partial disability benefit from $250 per week to $268 per week.¹⁴

G. Permanent Partial Disability Benefits

Permanent partial disability ratings must be based upon the American Medical Association's Guides to the Evaluation of Permanent Impairment.¹⁵ O.C.G.A. section 34-9-263(d) was updated by amendment to require the use of the latest version of those guidelines, which is currently the fifth edition.¹⁶

H. Penalty for Late Payment of Medical Expenses

Prior to the 2001 legislative amendments, the Board had discretion to assess a penalty of up to twenty percent of reasonable medical charges not paid within thirty days of receipt.¹⁷ However, O.C.G.A. section 34-9-203(c) was amended to provide a more structured system; for charges that are properly submitted and not paid within thirty days, but paid within sixty days, a ten percent penalty "shall be added."¹⁸ For charges not paid within sixty days, but paid within ninety days, a twenty percent penalty must be paid.¹⁹ For those charges paid after ninety days of proper submission, not only will the twenty percent penalty be required, but a twelve percent interest must be paid on the whole bill (including the penalty) from the ninety-first day after the charges were due until full payment is made.²⁰ The penalties and interest go to the healthcare provider.²¹

III. Preauthorization of Medical Care

While preauthorization and precertification have become commonplace in medicine, preauthorization of medical care was never a feature of the Georgia Workers' Compensation Act. The State Board of Workers' Compensation Rules and Regulations have provided that the failure of an employer or its insurer to authorize or controvert a written request for preauthorization by an authorized treating physician may result in the waiver of any defenses to payment.²² If the employer utilizes a Workers' Compensation/Managed Care Organization ("WC/MCO"), and any dispute over authorization is not resolved in the WC/MCO dispute resolution process within thirty days, the employer or its insurer shall have no more than fourty-five days from the initial notice of the dispute to either authorize or controvert.²³

Effective July 1, 2001, the Rules and Regulations of the State Board of Workers' Compensation implemented a new procedure that utilizes a new Board form denominated a WC-205.²⁴ The form announces on its face that "[a]dvance authorization for the medical treatment or testing of an injured employee is not required by the Georgia Workers' Compensation Act."²⁵ Furthermore, the treatment or testing will be deemed preapproved if there is a failure to respond to this form within five business days.²⁶ If the employer or its insurer complies and furnishes a written refusal to authorize within five days, the employer or its insurer still must authorize or controvert the medical care within twenty-one days of the initial request.²⁷

IV. Arising Out of and in the Course of Employment

In Harrison v. Winn Dixie Stores, Inc.,²⁸ the court of appeals confronted a unique permutation of the rule that generally excludes coverage for injuries occurring while an employee is either going to or coming from work. Shane Harrison, a Winn Dixie employee, agreed to work an unscheduled early morning shift at the Buford Winn Dixie Store after his overnight shift at the Chamblee Winn Dixie location. While en route from the Chamblee store, Harrison was injured in an automobile collision. Harrison admitted that he was free to stop and eat on his way to the Buford store, and if he arrived safely he needed to clock in before commencing work.²⁹

Based upon a finding that the injury did not arise out of and in the course of employment, the Administrative Law Judge ("ALJ") held Harrison was not entitled to benefits. The Appellate Division of the Board and the Superior Court affirmed.³⁰ The court of appeals agreed, noting that it is well established that an employee is not acting in the course of his employment when traveling to and from work.³¹ While there are exceptions to the general rule, the court concluded none of the exceptions applied to this factual scenario because "Harrison was not required to go to the Buford store as a condition of his employment with Winn Dixie."³²

V. The Burden of Proof in Disputes over Compensability of Medical Care

In Smith v. Mr. Sweeper Stores, Inc.,³³ the court of appeals reaffirmed the fundamental tenant of our jurisprudence that the party seeking the remedy bears the burden of proof when the issue of compensability of medical care is addressed in the context of a claimant's right to medical care under the Workers' Compensation Act.³⁴ In 1990, while on company business, Betty Smith was in an automobile accident. She sought and obtained medical benefits only from her employer for the aggravation of preexisting headaches and hypertension. Approximately seven years later, the employer and its insurer refused to pay continuing treatment for Ms. Smith's headaches and hypertension on the basis that the treatment was not related to the on the job injury in 1990. Ms. Smith disagreed and requested a hearing on the matter. Smith argued the employer should shoulder the burden of proof when the employer wishes to discontinue a course of treatment provided by authorized physicians. The ALJ determined Ms. Smith had the burden and she failed to sustain it. The appellate division adopted the award and the superior court affirmed.³⁵

The court of appeals agreed with the findings and conclusions of the lower courts, but in doing so suggested that the conclusion might be different where there is an award or a prior agreement on the issue: "Here, there was neither an award nor an agreement approved by the Board. On the contrary, the central issue was Smith's entitlement to continue receiving medical...