NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
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Rayford H. Taylor
Of Counsel
Gilson Athans P.C.
980 Hammond Drive, Suite 800
Atlanta, Georgia 30328
770-512-0300 - Ext. 529
770-512-0070 - Fax
rtaylor@gilsonathans.com
www.gilsonathans.com
The Appellate Court found that the evidence supported the State Board
of Worker’s Compensation’s denial of benefits to the claimant
ABF Freight System, Inc. v. Presley
(Georgia Court of Appeals)
Employee not entitled to additional benefits because he could not establish he had sustained a “fictional new accident,” but rather had merely had a “change in condition.”
Summary
Employee had to prove right knee problems were a result of a fictional new injury, rather than a change in condition arising out of normal life. He failed to prove a new injury, so not entitled to benefits.
Discussion
Mr. Presley worked for ABF Freight System, Inc. as a truck driver and dock worker. He sustained a compensable injury to his right knee, had surgery, and received temporary total disability (“TTD”) benefits during his absence from work. He later returned to work without restrictions or limitations and continued to perform his normal job duties. However, his right knee pain worsened and he was diagnosed with arthritis in the knee and was advised that he would eventually need a right knee replacement.
Mr. Presley also sustained a compensable job-related injury to his left knee, had surgery and again ultimately returned to work without restrictions or limitations and resumed his normal duties. His right knee pain continued to worsen following his left knee surgery. He had apparently suffered a tear of the medial meniscus to his left knee but continued his normal job duties even as his right knee pain worsened.
After an additional year of continuing to work in his regular job duties following his left meniscal tear, the doctor informed Mr. Presley that a total right knee replacement was necessary. Mr. Presley had the surgery and was placed on a “no work” status and sought payment of TTD benefits, arguing that he had sustained a fictional new injury. ABF argued that it was a change in condition for the worse, and the right knee condition and it was not compensable.
Whether an employee suffers a fictional new injury or change in condition is a question of fact for determination by the administrative law judge (“ALJ”). In this case, the ALJ denied benefits, finding that Mr. Presley did not suffer fictional new injury and that the two-year statute of limitation barred his claim since he had last received TTD benefits for his right knee more than years prior. On appeal, the State Board adopted that decision.
The parties agreed that there was no singular specific incident creating an immediate need for Presley’s total right knee replacement. Instead, the dispute was whether Presley’s total temporary disability arising from his right knee replacement should be characterized as a fictional new accident or a change in condition for the worse.
A fictional new injury, or aggravation of a pre-existing condition, occurs when a “claimant is injured on the job but continues to perform the duties of his employment until such time that he is forced to cease work because of the gradual worsening of his condition which was at least partly attributable to his physical activity in continuing work subsequent to his injury.” Central State Hospital v. James, 147 Ga. App. 308, 309, 248 S.E.2d 678 (Ga. App. 1978).
A change in physical condition, on the other hand, occurs when a claimant sustains an injury and is awarded compensation during his period of disability. Subsequent thereto, the employee returns to employment performing his normal duties or ordinary work. Then as a result of the wear and tear, ordinary life and the activity connected with performing his normal duties and not because of any specific job-related incident, his condition gradually worsens to the point where he can no longer continue to perform his ordinary work.
Ordinarily, the distinguishing feature that determines whether that disability is either “a change of condition” or a “fictional new accident” is the intervention of new circumstances. Whether an employee suffers a fictional new accident or a change in condition is a question of fact to be determined by the ALJ. In this case, the Appellate Court found that under the “any evidence rule” the findings of the State Board and the ALJ had to be affirmed.
________________________
ABOUT THE AUTHOR
The article was written by Rayford H. Taylor, Esq., Of Counsel to Gilson Athans P.C., a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and all other liability and commercial matters. Mr. Taylor is admitted to practice law in Florida and Georgia and is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Taylor and Gilson Athans are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.
Rayford H. Taylor
Of Counsel
Gilson Athans P.C.
980 Hammond Drive, Suite 800
Atlanta, Georgia 30328
770-512-0300 - Ext. 529
770-512-0070 - Fax
rtaylor@gilsonathans.com
www.gilsonathans.com
Employee Entitled to receive Temporary Total Disability Benefits
Burns v. State of Georgia, Department of Administrative Services
(Georgia Court of Appeals)
Employee entitled to receive temporary total disability (“TTD”) benefits following termination because Employer was found to have terminated her because of her work-related injury.
Summary
LaVerne Burns was a receptionist for the State of Georgia, Department of Administrative Services. She was injured when the chair she was sitting in collapsed. She received worker’s compensation benefits in connection with the injury, but continued to work in her position until her employment was terminated. She then sought TTD benefits. An administrative law judge (“ALJ”) awarded Ms. Burns TTD benefits, finding the reasons the employer gave for terminating her employment were pretextual and she was terminated due to her work injury. The State Board’s Appellate Division upheld the award of TTD benefits.
Discussion
Following her employer’s termination, the claimant sought TTD benefits. The employer challenged the request on the grounds that her employment was terminated for reasons unrelated to her injury and because she had not sought another job. After the trial, the ALJ awarded Burns TTD benefits and specifically found she was a credible witness and “the reasons given by the employer to justify her termination were pretextual and that she was terminated due to her work injury.” Because the real reason for the termination was the work-related injury and claim, the ALJ determined Burns had carried her burden of proving, by a preponderance of the evidence, entitlement to TTD benefits.
As a general rule to obtain benefits, a claimant is required to show either that they have searched for another position or that they had been working in a restricted capacity when their employment was terminated. The Supreme Court of Georgia inPadgett v. Waffle House, 269 Ga. 105, 498 S.E.2d 499 (Ga. 1998), clarified that showing a diligent but unsuccessful effort to secure employment following termination was a way of establishing the necessary element of causation. However, in this case, by proving the work-related injury was the proximate cause of the termination, the claimant established the causal link between injury and her worsened economic condition. Therefore, she did not have to establish she had searched for another position. Finding the reasons for the termination were a pretext to avoid continued payment of benefits satisfied the proximate cause requirement.
The Court said the issue was not whether Burns sought new employment or whether she was working under restrictions when the employer terminated her, but whether she demonstrated the necessary causal link between her work-related injury and her worsened economic condition. The fact that the employer gave pretextual reasons for terminating her employment, which was due in part to Burns’ work-related injury, established the causal link. The case was remanded back to address whether or not there was sufficient evidence to establish the finding of her termination based upon a pretext.
________________________
ABOUT THE AUTHOR
The article was written by Rayford H. Taylor, Esq., Of Counsel to Gilson Athans P.C., a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and all other liability and commercial matters. Mr. Taylor is admitted to practice law in Florida and Georgia and is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Taylor and Gilson Athans are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
Reid v. Metropolitan Atlanta Rapid Transit Authority ("MARTA")
(07/16/2013, Georgia Court of Appeals)
Georgia Court of Appeals rules that claims seeking only alleged past due benefits or penalties are not subject to the two-year statute of limitations. Employee allowed to pursue claim for alleged past-due penalties on late-paid indemnity benefits eight years prior.
Mr. Reid was injured at work in October, 1999, and filed a claim for benefits with the State Board of Workers' Compensation. MARTA did not controvert the claim and began paying him temporary total disability ("TTD") benefits, and ultimately made a total of 32 payments. It was undisputed that 12 of those payments were untimely or late. The claimant returned to work on June 10, 2002, at which time the payment of TTD benefits was suspended.
In May, 2010, Mr. Reid's attorney sent a letter to MARTA requesting it pay the statutory penalty due on the 12 late TTD payments. MARTA declined, asserting that demand for payment was barred by the applicable statute of limitations. The matter went to a hearing on the payment of statutory penalties. The administrative law judge denied Mr. Reid's request, finding the claim constituted a "change in condition" and was therefore barred under the two-year statute of limitations. The ALJ's ruling was affirmed by the appellate division of the State Board, which was also affirmed by the Fulton County Superior Court. The Georgia District Court of Appeals reversed the ruling that the two-year statute of limitations was applicable, as the employer/insurer had failed to pay the late payment penalties nearly ten years earlier. The Court found that since the employee was not seeking to recover statutory late payment penalties because of his physical or economic condition, but because the penalties constituted benefits due him under the law. Therefore, the two-year statute of limitations did not apply.
This opinion appears to contain two important issues. One is that the two-year statute of limitations may not apply in any case in which an employee is seeking to recover all benefits "due," rather than additional benefits due as a result of either the accident or a change in condition. This would arguably encompass late payment penalties, missed TTD checks, correct calculation of AWW or TTD rate, even if a substantial period of time (in this case, ten years) had passed since the last payment. Whether or not this decision allows for the resurrection of any "unsettled" or "unresolved" claim based upon the failure of the employee to receive the benefits or penalties is not clear. It should also be noted that Mr. Reid's initial indemnity claim with the State Board remained pending and was not closed. In the future, such claims should proceed to hearing, or be dismissed to minimize the potential for extremely old claims being reasserted.
The other interesting issue is whether or not payment or an award of the late payment penalties somehow resurrects the two-year statute of limitations for an additional "change in condition" claim.
In reaching its conclusion, the Appellate Court indicated that under the statute's current language, an employer is precluded from asserting the statute of limitations as a defense to any subsequent attempt by an employee to recover payment of compensation which has accrued and owed him as a matter of law but which was wrongfully withheld by the employer. The Court also noted that applying the statute could lead to some results which may be considered absurd. However, that absurdity needed to be addressed by the Legislature, rather than by the Courts.
At this point, it should be assumed an effort will be made to get the Supreme Court of Georgia to take this case for review. If it is presented to the Supreme Court for consideration, the ruling could have far-reaching effects on the system here in Georgia.
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
Heritage Healthcare of Toccoa v. Ayers
(07/16/2013, Georgia Court of Appeals)
Georgia Court of Appeals upholds employee's counsel's right to assessed attorney's fees from employer/insurer on past due indemnity benefits, late payment penalty, and future indemnity benefits based on employer's conduct.
The employee reported an alleged work injury immediately after its occurrence on October 26, 2010. Her employer fired her the next day and rejected her request for disability benefits. On November 23, 2010, the employee filed a request for a hearing requesting income benefits and medical benefits, along with late payment penalties, assessed attorney's fees, and expenses of litigation.
The employer never controverted the claim, and on March 11, 2011, the employer's workers' compensation carrier paid the employee a lump sum for twenty weeks of past due benefits. The carrier then then began paying weekly benefits. On September 27, 2011, two days before a scheduled final hearing, the carrier paid the employee a lump sum as a late payment penalty for the March 11, 2011 benefits payment.
The final hearing took place before an administrative law judge ("ALJ") on September 29, 2011 for resolution of the employee's claim for assessed attorney's fees. The ALJ rejected the employee's claim for fees and employee appealed to the State Board. The State Board ruled that the employee was entitled to assessed attorney's fees and to reasonable expenses of litigation. Additionally, the Board found that although the employer did not contest the late payment penalty, it delayed paying the penalty without reasonable grounds and assessed attorney's fees were also warranted on those funds.
The case eventually reached the Court of Appeals which ruled that not only was the employee's attorney entitled to assessed attorney's fees on the past due benefits, but also the penalty benefits paid by the employer. In addition, the employee's counsel was entitled to receive an attorney's fee of 25% of the employee's weekly benefit for each week in the future up to four hundred weeks, unless the weekly benefit was terminated sooner.
The Appellate Court held that while the Board did correctly assess attorney's fees on the past benefits and on the penalty, it erroneously failed to award attorney's fees on the future weekly benefits pursuant to the statute.
In reaching its conclusion, the Appellate Court recognized that O.C.G.A. §§ 34-9-108(b)(1) and 34-9-108(b)(2) established the right of the employee to have assessed attorney's fees against the employer's insurer based upon the late payment and the resulting non-compliance with O.C.G.A. § 34-9-221. The Court recognized that it was appropriate to assess a "reasonable Quantum Meruit fee" of 25% (in this case) on future benefits because the responsibility for the claimant's attorney's fees should be shifted from the claimant to the employer's insurer because of the conduct of the employer or its insurer.
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
House Bill 154 made the following changes:
1. Amendments to Section 34-9-200(a) O.C.G.A. provide that for all injuries sustained after June 30, 2013, employers will only have to provide medical benefits for a maximum of 400 weeks for all injuries which are not designated to be catastrophic.
2. Section 34-9-203(c) O.C.G.A. has been amended to require employer/carriers make mileage payments to claimants within 15 days of receipt of the mileage reimbursement request and documentation.
3. Lump sum payments will be based upon a present value calculation of 5% per annum, instead of 7%, pursuant to Section 34-9-222(a) O.C.G.A.
4. Section 34-9-240 O.C.G.A. was amended to address return-to-work issues. An employee released to return to work has to try the job for at least 8 cumulative hours or one scheduled work day, whichever is greater. If the employee does not perform the job for 15 days before stopping, weekly benefits have to start again and the employer has to prove the employee is not entitled to continue receiving indemnity benefits. If the employee tries the job for less than 8 cumulative hours or one scheduled work day, or refuses to work, the employer may cease benefits and the burden shifts to the employee to prove he cannot perform the job to restart indemnity benefits.
5. The maximum TTD rate was increased from $500 to $525 in Section 34-9-261 O.C.G.A., and the maximum TPD rate was increased from $334 to $350 in Section 34-9-262 O.C.G.A.
732177-1
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
SunTrust Bank v. Travelers Prop. Cas. Co. of Am., (03/28/2013)
The worker was injured in the course of his employment following a motor vehicle collision. He received workers' compensation benefits before filing suit against two third-party tortfeasors. Although the insurer timely intervened in the suit to protect its workers' compensation subrogation lien, the worker and the tortfeasors settled the case for a confidential lump sum without the insurer's knowledge, participation or consent. Among other terms, the settlement agreement included a conclusory statement that the proceeds of the settlement did not fully and completely compensate the worker for his injuries. The insurer filed its motion to enforce its subrogation lien, which the trial court granted.
On appeal, the estate administrator contended the trial court erred in finding the terms of the settlement agreement did not extinguish the insurer's right to enforce its subrogation lien. The court disagreed and held the insurer had the right to intervene and the trial court was required to conduct a hearing on whether the worker was fully compensated, so that the insurer could attempt to enforce its subrogation lien.
720428-1
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
Zheng v. New Grand Buffet, Inc., (03/20/2013)
Zheng sustained a compensable injury on May 27, 2010, and began receiving medical care and income benefits. Her employer suspended Zheng's income benefits on October 1, 2010, asserting that Zheng underwent a change in condition for the better based on a regular duty work release from her authorized treating physician ("ATP"). Zheng disputed that she had undergone a change in condition for the better and sought reinstatement of her income benefits, payment of certain medical expenses, permission to change her ATP, a late penalty, and an assessment of attorney fees.
The administrative law judge ("ALJ") found the employer's suspension of benefits "was not improper" in view of an August 24, 2010, statement from the ATP that he anticipated she would be able to return to work on August 31, 2010. The work release was prospective, however, depending on test results and an evaluation, and Zheng did not return to the doctor on August 31, 2010, as scheduled. Instead, Zheng elected to see another physician of her own choosing. After reviewing evidence from the physicians who saw Zheng before and after, the ALJ reinstated Zheng's income benefits as of October 1, 2010, concluding that the employer did not establish by a preponderance of the evidence that she had a change in condition for the better that allowed her to return to work without restrictions.
The ALJ also found the employer had a panel of physicians and that the employer's manager had explained the panel's function to Zheng when she had been rehired two months before she was injured. Zheng had received treatment from the three physicians on the panel: Dr. Chang, Dr. Wu, and Dr. Armstrong. However, instead of returning to Dr. Armstrong, she changed physicians on her own without Board approval. Because the employer had been providing appropriate medical treatment, it did not lose control of her treatment and was not responsible for paying the new physicians' expenses. The ALJ denied Zheng's request that one of her new physicians be designated as her ATP, finding that the employer should first have the opportunity to offer treatment by another physician of the employer's choice. Finally, finding that the case was closely contested on reasonable grounds, the ALJ denied the employee's request for attorney fees and penalties.
Both sides appealed the ALJ's decision to the Appellate Division of the State Board of Workers Compensation, which adopted the ALJ's findings of fact and conclusions of law. Both parties appealed this decision to the superior court, which conducted a hearing. The superior court did not issue an opinion within 20 days of the hearing, and thus the Board decision was affirmed by operation of law.
On appeal, the appellate court affirmed the ALJ's rulings because there was evidence of a valid panel, the panel had been explained to the employee, and she went to an unauthorized physician without permission of the employer/carrier. The employee's remedy was to petition the State Board for a change, rather than seeking treatment on her own.
720425-1
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
Garcia v. Shaw Indus., Inc., (03/29/2013)
Employer found not liable for intentional infliction of emotional distress and defamation for reporting employee's possible fraud to State Board of Workers' Compensation
The employee was not a citizen of the United States, but entered the country legally with a border-crossing card. The employee was not authorized to work in the United States, but obtained employment using the name, Social Security number, and personal information of another person, whose identity the employee paid to use.
The employee fell and injured her back at work. After treatment, she returned to light duty work and filed a claim for benefits. During that period, the employer became aware of the employee's situation and immigration status. The employer terminated the employee, but continued to provide medical treatment and TPD benefits.
The employer filed a complaint with the State Board's fraud and compliance unit. The employee was later arrested on warrants for forgery and possession of fraudulent documents after her deposition in the workers' compensation case was completed. The employer cooperated with the State Board, and arranged for the State Board to arrest her after the deposition. The employee filed her IIED suit, which was dismissed.
On appeal, the employee contended the trial court erred in granting summary judgment to the employer on her IIED claim, because there was evidence the employer set her up for arrest causing her severe emotional distress. The appellate court concluded the employer's conduct did not rise to the level of extreme and outrageous conduct necessary for an IIED claim. Even if the employer knew the employee was operating under an alias, it was not malice for the employer to want to bring the illegal behavior to an end. In addition, when the employer filed an administrative fraud complaint with the Georgia State Board of Workers' Compensation, it truthfully and accurately related the facts.
720424-1
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
Dixie Roadbuilders, Inc. v. Sallet, (10/26/2012)
An Employer's Voluntary Payment of Benefits May Not Establish an Employer's Entitlement to Workers' Compensation Immunity
The deceased employee worked for an asphalt company and had gone to a convenience store associated with the asphalt company and used by employees. The employee was killed during a shooting at the convenience store. Mr. Sallet's adult children filed a wrongful death action against the employer. The employer sought dismissal because it had workers' compensation immunity.
The trial court found a factual question existed as to whether workers' compensation applied to the deceased employee's injuries and that plaintiffs could challenge the applicability of workers' compensation to those injuries, notwithstanding the employer's voluntary workers' compensation payment of the deceased employee's funeral expenses.
The court found a genuine issue of material fact existed as to whether the deceased employee had left work for the day or was merely on a break when he went to the convenience store. Further, a genuine issue of fact existed as to whether the deceased employee's trip to the store was a deviation from his employment and, therefore, a personal pursuit.
The court found a factual question existed as to whether workers' compensation applied to Mr. Sallet's injuries, and the plaintiffs could challenge the applicability of workers' compensation to those injuries, notwithstanding Dixie Roadbuilders' voluntary workers' compensation payment of Sallet's funeral expenses.
After the shooting, Dixie Roadbuilders filed a claim with its workers' compensation insurance carrier. In response to this claim, the carrier made a payment directly to the funeral home for Sallet's funeral expenses and a payment to the State Board of Workers' Compensation pursuant to O.C.G.A. § 34-9-265(f). The plaintiffs, however, neither sought workers' compensation benefits from Dixie Roadbuilders nor requested it file the claim with its insurance carrier. They did not know the funeral costs had been paid by Dixie Roadbuilders' carrier but believed those costs had been paid by a friend of Sallet.
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
Arby's Rest. Group, Inc. v. McRae, Supreme Court of Georgia (11/05/2012)
Georgia Supreme Court Upholds an Employer's Right to Access a Workers' Compensation Claimant's Medical Records and to Discuss Case with Physician
The employee filed a claim and received workers' compensation benefits. The State Board granted the employer's motion to dismiss the employee's hearing request or for an order authorizing the treating physician to communicate with the employer's representative. The employee refused to sign the authorization and her hearing was cancelled.
The issue before the supreme court was whether O.C.G.A. § 34-9-207 required an employee who filed a claim under the Georgia Workers' Compensation Act, O.C.G.A. § 34-9-1et seq., to authorize her treating physician to engage in ex parte communications with her employer or an employer representative in exchange for receiving benefits for a compensable injury. The supreme court concluded the trial court erroneously held that an employee was not required to authorize such communications. The employer could seek relevant protected health information informally by communicating orally with the employee's treating physician.
Section 34-9-207, by its plain language authorized a treating physician to disclose not just tangible documents, but also information related to the examination, treatment, testing, or consultation concerning the employee. The supreme court further concluded that "information" under § 34-9-207 included oral communications. The supreme court also noted that § 34-9-207 did not require the physician agree to be interviewedex parte, but allowed the physician to have his own counsel or the employee or her counsel present.
Under Georgia law, an employer in a workers' compensation case is entitled to seek from any physician who has examined, treated, or tested the employee all information and records related to the examination, treatment, testing, or consultation concerning the employee. O.C.G.A. § 34-9-207(a). The employee is deemed to have waived any privilege or confidentiality concerning any communications related to the claim or history or treatment of injury arising from the incident that the employee has had with any physician, including, but not limited to, communications with psychiatrists or psychologists. This waiver applies to the employee's medical history with respect to any condition or complaint reasonably related to the condition for which such employee claims compensation.
Any privilege the employee may have in protected medical records and information related to a workers' compensation claim is waived once the employee submits a claim for workers' compensation benefits, is receiving weekly income benefits or the employer has paid any medical expenses. The occurrence of any one of these triggering events waives the employee's privilege in confidential health information and the information may be released by a treating physician.