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.

On Friday, April 25, 2008, a secretary with an Atlanta downtown law firm was shot and killed by a co-worker during lunch.  This was a tragic event that will be investigated by the authorities.  Along with her unfortunate loss, her employer will also have to address the question of whether her death is compensable under workers’ compensation.

The Georgia Board of Workers’ Compensation examines two issues to establish whether workers’ compensation covers the willful acts of third person.  As a general rule, where an employee is free to use time for the employee’s individual affairs and an injury occurs during this time, the injury is not compensable.  However, if the employee is conducting the employer’s business during the break, the injury would be compensable.  Further, where an injury or death of an employee arises from the willful act of a co-employee or third party, the attack must be related to work in some way, rather than from personal animosity, to render the death or injury compensable.  

In this instance, a co-employee (who worked for a temporary agency) from the law firm’s records room approached the secretary at lunch outside at a picnic area.  After a quarrel, the co-employee shot the secretary and then killed himself.  What remains to be determined is the nature of their relationship and if anyone overheard the substance of the escalating conversation.  If the shooting was the result of a rebuffed personal advance or a soured personal relationship, the death would not be work-related.  Conversely, if the co-employee was angry about a job request or assignment given to him from the secretary, the death could be compensable.  Finally, if the secretary was on her free time for lunch but was working on employment-related business, the injury by a co-employee for personal reasons likely would not be compensable.  It would be the same as if the injury occurred during any hour of the day at work.  Of course, to make a final determination of compensability in any case, the specific facts must be examined.

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

Currently, injuries that occur as an employee is coming from or going to work are not compensable under Georgia Law. However, with the rise of cell phone use while driving, it is common for employees to conduct business in the car on the way home or going to work. Is this enough to eliminate the “coming and going” doctrine if an accident occurs while the driver is on the cell phone? On October 1, 2007, the Georgia Court of Appeals reversed the grant of summary judgment to Modern Continental in Hunter v. Modern Continental Construction Company, Inc. Hunter’s complaint for damages arises from a vehicular accident between Hunter and the driver of a truck driven for Modern who was on his way to work at the time of the accident. The court held that the jury should decide whether the truck driver was “in the course and scope of his employment“ as there is some evidence that he was talking on his cell phone discussing company business when the accident happened. Hunter is not a workers’ compensation case but it represents a growing trend that may affect future analysis of “in the course and scope” for workers’ compensation purposes.

For more information, please contact Catherine Dellinger Buckley at (404) 974-4588.

The State Board of Workers’ Compensation (Board) has authority to determine the weight and balance conflicting expert opinions, as stated by the Georgia Court of Appeals this past July. See Bibb County Board of Education v. Bembry, 2007 WL 2164643 (Ga.App., July 30, 2007). The court reiterated it is “within the province of the Board to determine the credit to be given to the conflicting opinions of experts.” The Court also stated that a medical opinion does not need to be based on medical certainty, instead applying a standard of medical probability. This opinion reaffirms previous case law, holding that the Board has the right to resolve conflicts of evidence and witness credibility.

For more information, please contact Catherine Dellinger Buckley at (404) 974 - 4588.

Recently, it has become more difficult for a workers’ compensation claimant to recover for a heart attack. To prove that the heart attack arose out of the individual’s employment, the claimant must demonstrate a causal connection between the heart attack and his/her work conditions. AFLAC Inc. v. Hardy, 250 Ga.App. 570, 552 S.E.2d 505 (2001). In sum, a successful workers’ compensation claimant must show three things: (1) an actual injury exists, (2) the individual was injured in the course of employment, and (3) the injury arose out of the individual’s employment. Even if work related stress exists, non-job related factors may be significant enough for a court to find that the work environment caused the heart attack. Pitts v. City of Rome, 256 Ga.App. 278, 568 S.E.2d 167 (2002).

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