The Buckley Brown Blog

An employee who complained of pain from loading heavy crates of chickens for long hours is not entitled to compensation benefits, as held in Herman Miller v. Tip Top Poultry.  There, the Administrative Law Judge ruled in favor of the employer, despite the employee’s claim that the cumulative effect of his work caused a gradual deterioration of his condition to the point of disability. 
 
The evidence in Miller, which at times was contradictory, showed at most that the activities caused the employee pain.  But the court found that the employee ceased working because of his wife’s poor health and his need to be with her, instead of his physical condition.  Further, the medical evidence did not substantiate any physiological problems, only subjective complaints.  Without an injury proven by a preponderance of competent and credible evidence, the employee was not entitled to workers’ compensation benefits. Pain in and of itself does not constitute a compensable injury.  Johnson v. Boston-Old Colony Ins. Co., 106 Ga. App. 410 (1962).  Therefore, the claim for medical and indemnity benefits was denied in its entirety.

For more information, please contact Catherine Dellinger Buckley at (404) 633-9230.

In a slip and fall case, the plaintiff must show that the defendant had actual or constructive knowledge of the hazard that caused the injury in a slip and fall case.  But if the plaintiff’s knowledge was equal to or greater than that of the defendant, then the case will be dismissed.

Accordingly, the Court of Appeals recently affirmed a granting of summary judgment in favor of the defendant in a slip and fall case.  In Diaz v. Wild Adventures, Inc., — S.E.2d —, 2008 WL 239859 (Ga.App. 2008), the plaintiff fell at an amusement park when stepping in a puddle of water on a ride’s metal walkway.  Diaz admitted that he was aware that rain water had accumulated around the ride, having seen water flowing down the sides of the ride and onto the floor.  Diaz also admitted that he noticed the floor of the ride was very wet and dirty before attempting to enter the ride. 

The cars on the ride where Diaz fell traveled over small carbon deposits, which made the car’s floor appear dirty.  Because Wild Adventure’s facility manager acknowledged that graphite is a type of carbon, Diaz argued that Wild Adventure was aware that graphite, a known lubricant, was on the floor of the ride, making it more slippery. 

But the Court of Appeals did not agree.  It found that Diaz did not prove that carbon dust made the floor more slippery than rain water alone and that Wild Adventures did not have constructive knowledge of the hazard because it cleaned the floor each morning.  Since Diaz failed to prove that Wild Adventures had actual or constructive knowledge of the alleged hazard, it did not have the requisite superior knowledge; thus, the court affirmed summary judgment for the defendant.

For more information, please contact Tim Buckley at (404) 633-9230.

Beginning July 1, 2009, the new Medicare, Medicaid, and SCHIP Extension Act of 2007 requires liability insurers, including self-insurers, no-fault insurers and workers’ compensation insurers, to:  

• Determine Medicare/Medicaid status for all claimants; and
• Report to the Centers for Medicare and Medicaid Services (“CMS”), the federal administrative agency responsible for administering Medicare and Medicaid, when those claims are resolved.

 This means a duty falls to an alleged tortfeasor’s insurance carrier or the tortfeasor if self-insured to determine whether the plaintiff is on Medicare and to report to the appropriate agency in the event resolution of the tort claim is being sought. The Secretary of Health and Human Services then will coordinate the Medicare benefits for the claimants.  The information must be timely submitted after the claim is resolved through settlement, judgment or award of other payment.  The requirements concerning when and what information is to be submitted to the Secretary will be later determined by the CMS.  Whether liability is determined or admitted does not impact the reporting requirement. Failure to comply with the Act’s notification requirements may result in a civil penalty of $1,000 per day per claimant.  This penalty is distinct from Medicare’s current statutory right to collect 100 percent of conditional payments to the Medicare beneficiary – that right of recovery stands against the tortfeasor or its carrier regardless of whether the claimant has received the full settlement funds.  Thus, this right to recover should be considered in any settlement agreement and before transferring any funds.   Until the rulemaking is completed, many unanswered questions about the implementation of this provision remain, including what information must be submitted to the Secretary and within what timeframe it must be submitted to comply with the Act.  We will continue to update any new developments concerning the Medicare, Medicaid, and SCHIP Extension Act of 2007 once regulations are promulgated.

For more information, please contact Denny Brown at (404) 633-9230.

Many insurance policies provide benefits to people injured when the driver who is at fault is uninsured or underinsured. Previously, Georgia courts permitted payments made under an uninsured motorist policy to be offset by other benefits and payments such as workers’ compensation, disability benefits and property insurance.  The underlying principle was to avoid duplicate payments.  However, the Supreme Court of Georgia has now declared in Dees v. Logan that an award for damages in such a case may no longer be offset by these other benefits paid to the insured, specifically workers’ compensation and disability benefits. 

The Georgia Code was amended in 2006 to require that all automobile liability insurance policies include “an endorsement or provisions undertaking to pay the insured damages for bodily injury, loss of consortium or death of an insured or for injury to or destruction of property of an insured under the named insured’s policy sustained from the owner or operator of an uninsured motor vehicle . . . .”  In Dees, the Georgia Supreme Court determined that the new statute does not indicate that the state legislature intended for there to be a setoff. The insurance company argued that a provision in the Dees’ uninsured motorist policy allowed offset of the jury award for workers’ compensation benefits, social security benefits, and a pretrial settlement with the vehicle owner’s insurer given to the Dees.  The Court – focusing its reasoning on the workers’ compensation setoff provision – rejected this argument, explaining that the new insurance statute found at O.G.G.A. § 33-7-11(i) specifically permits offsets for compensation received for property loss, but is silent as to setoffs for personal injury.  The Court stated that if the legislature wanted to permit such setoffs, it should have specifically included them in the text of the statute. The Court continued by noting that an insurance policy provision that directly conflicts with the intent of a state statute, as here, is unenforceable as against public policy.  Denying arguments that the Dees were recovering twice, the Court instead reasoned that they were receiving what they were due from the owner of the uninsured vehicle and the benefits to which they were otherwise entitled. 

Look for the Georgia General Assembly to take this issue up in the current session.

For more information, please contact Tim Buckley at (404) 633-9230.

Georgia Courts may consider an expert opinion, even where arguments that some or part of the testimony it is purely speculative or conjectural exist. In a 4 to 3 decision, the Georgia Supreme Court in Layfield v. Department of Transportation, 280 Ga. 848, 632 S.E.2d 135 (2006) held that the crucial factor is whether the expert opinion is wholly speculative. The dissenting justices worried that this creates an opportunity to deny summary judgment when the expert testimony is conclusory and, therefore, inadmissible. The majority opined, instead, that where there exists objective evidence underlying the expert’s opinions, it is up to the jury to determine the weight to be given to such an opinion. Of note, this decision addressed facts pre-dating Georgia’s statutory adoption of the Daubert standards for admissibility and consideration of so called expert testimony.

For more information, please contact Tim Buckley at (404) 974-4570.

Georgia Courts may consider an expert opinion, even if it is speculative or conjectural, when ruling on a motion for summary judgment. The Georgia Supreme Court in Layfield v. Department of Transportation, 280 Ga. 848, 632 S.E.2d 135 (2006) held that the crucial factor is whether the expert opinion is wholly speculative. The dissenting judges worry that this creates an opportunity to deny summary judgment when the expert testimony is conclusory. The majority believes, instead, that it is up to the jury to determine the weight to be given to such an opinion.

For more information, please contact Tim Buckley at (404) 974-4570.