Workers' Compensation - H. Michael Bagley, Daniel C. Kniffen, and John G. Blackmon, Jr.

• Publication year: 1994

Workers' Compensationby H. Michael Bagley^* Daniel C. Kniffen" and

John G. Blackmon, Jr.^***

I. Introduction

After the difficult debate surrounding workers' compensation legislation in 1992, few would have thought it possible that the Georgia Legislature would revisit the Workers' Compensation Act (the "Act")¹ any time soon. Yet, the 1994 General Assembly made a number of substantial changes to the Act, constituting by far the most significant development in workers' compensation law over the survey period. Important case law decisions affected the areas of exclusive remedy, the employment relationship, and heart attack claims.

II. Legislative Changes

The General Assembly effected several major substantive changes to the Workers' Compensation Act in 1994.² Effective July 1, 1994, these amendments to the Act were designed and sponsored by the Chairman of the State Board of Workers' Compensation, Harrill Dawkins.³

A. Aggravation of Preexisting Condition

While the definition of "injury" and "personal injury" set out in the Workers' Compensation Act made no mention of the aggravation of a preexisting condition prior to 1994, it has long been a well-established principle that the aggravation of a preexisting condition by employment activities is viewed as an injury arising out of and in the course of employment.⁴ The judicial inclusion of "aggravation of a preexisting condition" into the definition of "injury" and "personal injury" was codified in 1994.⁵

Similarly, the General Assembly codified the well-established principle that the aggravation of a preexisting condition by an injury arising out of and in the course of employment is compensable only for so long as the condition is aggravated.⁶ While the definition of injury and personal injury were specifically amended to include aggravation of a preexisting condition, the amendment also restricted the inclusion "only for so long as the aggravation of the preexisting condition continues to be the cause of the disability; the preexisting condition shall no longer meet this criteria when the aggravation ceases to be the cause of the disability."⁷ In other words, not only will the employee's entitlement to disability benefits cease, but the employee shall no longer be entitled to medical care as well, since the entire claim ceases to be compensable.

B. Accidents Caused by Alcohol and Controlled Substances

It is well-settled that injuries which are proximately caused by an employee's intoxication as a result of the consumption of alcohol or controlled substances are barred as wilful misconduct.⁸ However, since this is an affirmative defense, the burden of proof has been on the employer, and the practicalities of amassing all of the evidence needed are all too often insurmountable.

In order to facilitate the fair and efficient administration of claims involving employees under the influence of alcohol or drugs at the time of their on-the-job injury, Official Code of Georgia Annotated ("O.C.G.A.") section 34-9-17⁹ was amended in 1994 to parallel the criminal provisions applicable to individuals charged with driving motor vehicles under the influence of alcohol or drugs.¹⁰ The burden-shifting presumptions created in the statutory framework for dealing with individuals charged with driving under the influence of alcohol or drugs have withstood constitutional challenges based upon an alleged denial of due process of law and have been found to be a valid and enforceable evidentiary tool.¹¹

A rebuttable presumption that the accident and injury were caused by the consumption of alcohol is created "if the amount of alcohol in the employee's blood within three hours of the time of the alleged accident, as shown by chemical analysis of the employee's blood, urine, breath or other bodily substance, is 0.08 grams or greater . . . ,"¹² Similarly, if "any amount of marijuana or controlled substance" is found in the employee's blood within eight hours of the time of the accident, as shown by chemical analysis of blood, urine, breath or other bodily substance, a rebuttable presumption is created that the accident and injury were caused by the ingestion of the drug.¹³

Previously, evidence confirming the mere ingestion of alcohol or controlled substances, without more, was not sufficient to mount a defense based upon the wilful misconduct of the employee.¹⁴ In the situations specified by this amendment, the burden of moving forward will be upon the employee, and the employee will be confronted with the task of essentially disproving that the alcohol or controlled substances were the proximate cause of the on-the-job accident and injury.¹⁵

Anticipating possible attempts to foil the testing requirements of these provisions, the statute also provides that if the employee unjustifiably refuses to submit to a reliable, scientific test to be performed in compliance with drug-free workplace programs,¹⁶ then the same rebuttable presumption that the accident or injury was caused by the consumption of alcohol or controlled substances shall arise.¹⁷

C. Penalty Provisions

The State Board of Workers' Compensation ("Board") has long possessed the authority to administer penalties for the failure to file forms or to follow orders or directives; in addition, the Board may administer penalties upon violation of any rule or regulation.¹⁸ The authority of the Board to administer penalties was expanded in 1994 to include the power to assess a civil penalty of not less than $500 and no more than $5,000 per violation against any person who knowingly and intentionally makes any false or misleading statement or representation for the purpose of facilitating the obtaining or denying of any benefit or payment under the Act.¹⁹ Likewise, the Board has the same authority for violations of the provisions requiring employers to obtain workers' compensation insurance or qualify as a self-insured.²⁰

D. Construction and Interpretation of the Act

Through judicial pronouncement, it has become axiomatic that the Georgia Workers' Compensation Act is a "humanitarian measure meant to provide relief to the injured employee, and the Act should be liberally interpreted by the Courts to carry out that purpose."²¹ However, the underlying philosophy of interpreting the Act itself in a liberal manner has frequently been used in practice as the basis for interpreting the facts as well as the law in favor of a claimant, which is erroneous as a matter of law.²²

In an effort to more clearly define the manner in which the Act should be construed and interpreted, O.C.GA. section 34-9-23 restricts liberality of construction to only the purposes of "bringing employers and employees within the provisions of this chapter and to provide protection for both."²³ Furthermore, for the first time in the history of the Act, the General Assembly specified that the Act's intent is "to provide a complete and exclusive system and procedure for the resolution of disputes between employers and employees . . . ."²⁴ However, the provision leaves no room for doubt that the Act "shall be construed and applied impartially to both employers and employees."²⁵

The essence of the General Assembly's message in O.C.G.A. section 349-23 is twofold. First, the workers' compensation system should be the exclusive remedy for resolving disputes between employers and employees for injuries to the employee which arise out of or in the course of employment. Second, coverage by the Act is the only issue which shall require liberal construction, and all issues other than coverage under the Workers' Compensation Act shall be construed in a manner which is impartial to both employers and employees.

E. Qualifications and Roles of Members of the Board

In a subtle change, acknowledging the reality of impartial Board members, O.C.G.A. section 34-9-42(a) was modified to change the requirement that there be one member "considered a representative" of employers and another member "considered a representative" of employees to a requirement that each of those members be "knowledgeable of the concerns" of either employers or employees.²⁶ Gone is the statutory requirement of an advocate on the Board for each side. Instead, the Board shall have a designated member who is a resource of knowledge and information.

This change is consistent with the judicial function of the Board, and in furtherance of the judicial function of the Board, there is now the statutory mandate that Board members shall be subject to the Georgia Code of Judicial Conduct.²⁷

F. Standard of Review by the Board

Prior to July 1, 1994, appeals to the full Board from an award of an Administrative Law Judge (ALJ) were de novo proceedings. The full Board had the authority to consider all evidence in the record and it was not bound to follow any of the ALJ's findings of fact or conclusions of law.²⁸

The General Assembly amended O.C.G.A. section 34-9-103(a) to abolish de novo review by the Board of awards from ALJs.²⁹ After July

1, 1994, the "findings of fact made by the Administrative Law Judge in the Trial Division shall be accepted by the Appellate Division where such findings of fact are supported by a preponderance of competent and credible evidence contained within the records."³⁰

A preponderance of evidence is defined in Georgia law as being where the evidence shows that a certain fact is more likely true than not true.³¹ Therefore, in order to have the Full Board reverse a finding made by an ALJ, the appellant will be required to show that the finding of fact made by the ALJ was at least based upon evidence which was evenly balanced in support of each party's contention.³²

G. Issues Related to the Employee's Return to Work

Aden's Minute Market v. Landon³³ and its progeny reemphasized the burden that must be carried by an injured employee who has ceased working for reasons unrelated to the on-the-job injury and seeks the reinstitution of disability benefits.³⁴ The employee must not only show the existence...