Will Limiting Physician Contact Drive Up Costs of Medical Malpractice Defense?

A recent decision by the Supreme Court of Georgia will likely increase the already high costs of medical malpractice litigation, as the Court unanimously held that defense attorneys are no longer allowed to informally communicate with a patient’s prior treating physicians regarding that patient’s health information.  In Moreland v. Austin, __ S.E.2d __, Case No. S08G0498, 2008 WL 4762052 (Ga. Nov. 3, 2008), Plaintiff objected to defense counsel’s informal “ex parte” communications with a deceased patient’s doctors during which defendant’s counsel asked the doctors to assess the Plaintiff’s cardiovascular status and prognosis.  The Court found this communication to be improper.

At the heart of the matter was a patient’s ability to control his/her own medical records when it comes to informal contacts between his/her doctors and an outside party, in this case a lawyer.  Georgia law provides more relaxed controls for patients, as they are deemed to waive their right of privacy regarding relevant medical information when they put that medical condition at issue in a case.  O.C.G.A § 24-9-40(a).  Under HIPAA, however, a medical provider may not disseminate a patient’s medical information without first obtaining a court order or the patient’s specific consent. 

Because the regulation of this information distribution is more narrow at the federal level than at the state level, the Court held that HIPAA preempts Georgia law.  Moreland at *3.  The Court specifically noted that this preemption is focused on the methods used to discover evidence rather than the discoverability of the evidence in general.  Id.

What this means for medical malpractice litigation is that defense attorneys will no longer be able to speak to a plaintiff’s prior treating physicians without complying with HIPAA regulations.  If such ex parte oral communications are to be allowed, the patient must have specifically consented to them prior to the communication.  Attorneys will be limited in their discovery tools for gaining information as well, as the Court explains that even “service of a request for production of documents is insufficient because, although it gave plaintiff notice and an opportunity to object to the production of written documents, it did not give the plaintiff an opportunity to object to the ex parte oral contact and the discovery of physician’s recollections and mental impressions.”  Id.  As critics of the decision have noted, this limitation of efficient discovery opportunities will likely raise the costs of defending medical malpractice suits.

The Court noted that this decision does not limit all ex parte communications between an attorney and the physicians, only those that deal with a patient’s health information.  Conversations regarding benign topics such as the best method for serving a subpoena or the most convenient dates for trial testimony are still allowed.

Georgia law had facilitated and streamlined the litigation process.  However, with this decision, the Supreme Court of Georgia swings the balance towards an emphasis on the protection of a patient’s private health information. 

As the losing defendant’s lawyer in Moreland may file a motion for reconsideration in the Supreme Court, and is not ruling out a petition to the United States Supreme Court on the issue, we will continue to follow this case and provide updates on any new developments concerning this issue.

For more information, please contact T.K. Haff at (404) 633-9230.

More than a Green Light: The Heightened Protection of Individually Identifiable Health Information

Take note, the health and medical data you may receive from your clients, employees, and/or customers is subject to a special level of protection from your use if it in any way identifies the person.  Besides the obvious categories of information such as names or contact information, protected information includes birthdays, medical record numbers, or any full face photographs or comparable images where a person’s identity could be established (a list of 18 individual identifiers according to HIPAA 1996 follows the end of this entry). 

 

So what if you have some great pictures you would like to use in a presentation or study?  The Department of Health and Human Services established guidelines that must be followed to get the person’s valid and legal authorization.

Simply having the person sign a generic authorization form or “release” (often called a “model release” for photos) will not do.  Because medical information is seen as highly private, the Federal Regulations demand that you take specific steps in order to provide the person with the highest level of understanding of what exactly you are asking for.  A valid authorization under the Code of Federal Regulations, section 164.508, has core elements which are required for all authorizations regarding the use of health care information.  These core elements, without any of which an authorization is invalid, are:

1.                   A description of the information to be used or disclosed that identifies the information in a specific and meaningful fashion.

2.                   The name or other specific identification of the person(s), or class of persons, authorized to make the requested use or disclosure.

3.                   The name or other specific identification of the person(s), or class of persons, to whom the covered entity may make the requested use or disclosure.

4.                   A description of each purpose of the requested use or disclosure.

5.                   An expiration date or an expiration event that relates to the individual or the purpose of the use or disclosure.

6.                   Signature of the individual and date.

7.                   A statement of the individual’s right to revoke the authorization in writing, and the exceptions to the right to revoke and a description of how the individual may revoke the authorization.

8.                   A statement of the ability or inability to condition treatment, payment, enrollment or eligibility for benefits on the authorization. 

45 C.F.R. § 164.508(c)(1-2).  In addition, the contract must be written in plain language, and a copy of the authorization must be given to the individual.  45 C.F.R. § 164.508(c)(3-4).

These requirements are not to be taken lightly, as they provide protection to the individual by providing notice of what they are allowing you to do with their personal information.  For example, for the description of the purpose of the requested use, the comments to the Rule provide that no mere generalization will suffice; instead, you must detail specifically what you want and what you plan to do with it:

[a]uthorizations requested by covered entities for their own uses and disclosures of protected health information must also identify each purpose for which the information is to be used or disclosed. The required statement of purpose(s) must provide individuals with the facts they need to make an informed decision whether to allow release of the information. We prohibit the use of broad or blanket authorizations requesting the use or disclosure of protected health information for a wide range of unspecified purposes.  Both the information that is to be used or disclosed and the specific purpose(s) for such uses or disclosures must be stated in the authorization.

 

65 Fed. Reg. 82,518 (December 28, 2000).  It is only when armed with this specific information that the individual will be able to make a true decision on whether to allow you greater rights in that information.  This personal interest is at the foundation of the HHS Privacy Rule, and cannot be tossed aside lightly.

 

So be wary when writing an authorization form in order to gain the rights to use person information.  Even if you personally gathered all of the data, you must be able and willing to follow each of the steps listed above.  If you don’t, you are inviting liability in the form of an invasion of privacy claim.

 

 

 

List of 18 Individual Identifiers according to HIPAA 1996:

1.       Names;

2.       All geographical subdivisions smaller than a State, including street address, city, county, precinct, zip code, and their equivalent geocodes, except for the initial three digits of a zip code, if according to the current publicly available data from the Bureau of the Census: (1) The geographic unit formed by combining all zip codes with the same three initial digits contains more than 20,000 people; and (2) The initial three digits of a zip code for all such geographic units containing 20,000 or fewer people is changed to 000.

3.       dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, date of death; and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older;

4.       Phone numbers;

5.       Fax numbers;

6.       Electronic mail addresses;

7.       Social Security numbers;

8.       Medical record numbers;

9.       Health plan beneficiary numbers;

10.   Account numbers;

11.   Certificate/license numbers;

12.   Vehicle identifiers and serial numbers, including license plate numbers;

13.   Device identifiers and serial numbers;

14.   Web Universal Resource Locators (URLs);

15.   Internet Protocol (IP) address numbers;

16.   Biometric identifiers, including finger and voice prints;

17.   Full face photographic images and any comparable images; and

18.   Any other unique identifying number, characteristic, or code (note this does not mean the unique code assigned by the investigator to code the data)

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

Insurance Company Avoids Bad Faith by Offering Its Policy Limits

Insurers in Georgia can be subject to “bad faith” claims depending on how they respond to a settlement demand sent to multiple insurers.  When multiple insurers are involved, an insurer likely will avoid a subsequent claim for bad faith if it unequivocally meets the portion of the demand over which it has control and then lets the claimant negotiate with the remaining insurers.  

This issue arose in the recent case of Fortner v. Grange Mutual Casualty Co., __ Ga.App. __, Case No. A08A0983, 2008 WL 4334613 (Sept. 24, 2008).  There, Fortner was injured in an automobile accident due to the negligence of Arnsdorff.  Arnsdorff was insured by Grange Mutual under a policy with a bodily injury liability limit of $50,000, and his plumbing business was insured by Auto Owners under a policy with $1.0 million in liability limits.  Fortner’s attorney offered to settle all claims against Arnsdorff for Grange’s policy limits of $50,000 and a contribution by Auto Owners in the amount of $750,000, so long as the offer was accepted in writing within 15 days.  Auto Owners did not respond in time, but Grange agreed to pay the $50,000 if Fortner signed a full release, including indemnification language, and dismissed his claim against Arnsdorff with prejudice.  Fortner deemed this response by Grange as a rejection, and he proceeded to trial where he won a $7.0 million verdict against Arnsdorff.  Arnsdorff then assigned his claim for bad faith against Grange to Fortner.  The bad faith claim eventually went to trial where the jury returned a verdict in favor of Grange. 

On appeal, Fortner objected to the following charge which was given to the jury:

In responding to a settlement demand, which demand is conditional upon the response of another insurance company, an insurance company can offer its policy limits in response to the demand and then let the plaintiff negotiate with the remaining insurers. In that situation, the insurance company would have given equal consideration to its insured’s financial interest and fulfilled its duty to him. And you would return your verdict in favor of the defendant.

The Georgia Court of Appeals held that this charge was a correct statement of the law and affirmed the verdict in favor of Grange.

Although the holding in Fortner reaffirms the principle of Georgia law that an insurer typically avoids liability for bad faith by meeting the portion of a demand over which it has control, the case also demonstrates the risk associated with adding contingencies to the acceptance of an offer to settle within the policy limits when there is a risk of an excess verdict that could lead to a bad faith claim.  In such a situation, the claimant closely scrutinizes the language of any attempted acceptance for new conditions that would allow him or her to consider the insurer’s response to be a counter-offer and thus a rejection of the offer to settle within the policy limits.  Therefore, when an insurer is responding to a settlement offer, it should analyze whether it is accepting the offer on the same terms communicated by the claimant or if it is adding any new terms to its attempted acceptance.

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

“I Plead The 5th!” When Civil Defendants Face Related Criminal Charges

Defendants in civil cases often also face related criminal charges. It thus is critical to balance the interplay of the civil and criminal matters. The plaintiff likely will propound discovery asking for admissions or information that may be incriminating in the criminal matter. Such risks also will be present during depositions. Therefore, care must be taken to protect the defendant’s rights at all phases of litigation.

A defendant has a right to avoid giving testimony to incriminate him. Ga. Const. 1983, Art. I, § I, ¶; XVI. The privilege against self-incrimination extends not only to those answers that would in themselves support a conviction, but also to answers that may establish a link in the chain of evidence needed to prosecute the criminal matter. Chumley v. Georgia, 282 Ga. App. 117, 637 S.E.2d 828 (2006).

However, when a person invokes his privilege against self-incrimination, an inference may be drawn by the fact finder that the witness’ testimony would be unfavorable to him. Simpson v. Simpson, 233 Ga. 17, 209 S.E.2d 611 (Ga. 1974). This can be devastating to the defense in the civil matter. One way to make the best of this difficult situation is to seek a stay in the civil matter pending the outcome of the criminal matter.

OCGA § 9-11-26(c) authorizes the trial court to issue a protective order where justice so requires: “Upon motion by a party or by the person from whom discovery is sought and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . [t]hat the discovery not be had [or] . . .[t]hat certain matters not be inquired into or that the scope of the discovery be limited to certain matters.” The grant or denial of a motion for protective order generally lies within the sound discretion of the trial court. Bridges v. 20th Century Travel, 149 Ga.App. 837, 839, 256 S.E.2d 102 (1979).

The law generally disfavors complete stays in these situations. See Christopher v. State of Ga., 185 Ga.App. 532, 364 S.E.2d 905 (1988), (“a merely conclusory allegation that any and all discovery would prejudice the criminal investigation, without more, would frustrate legitimate discovery, as would either an unreasonable or indefinite stay”); and Bridges, 149 Ga.App. at 839, 256 S.E.2d at 102 (holding that the trial court will not be able to effectively decide whether the privilege is validly raised unless there is a record of the questions propounded, including those to which the privilege has been asserted and the court considers the implications of each question to which the privilege is raised and the setting in which it is asked and whether the party raising the privilege should provide sufficient information on which the court may find that a real danger of incrimination exists.)

Nevertheless, a complete stay is not improper under the law and lies within the sound discretion of the trial judge. OCGA § 9-11-26(c). In the alternative, the defendant can ask the court for protection from responding to certain discovery.

When presented with the possibility of facing both civil and criminal actions, defendants must be careful to not impair one defense while protecting another. Understanding and balancing these issues is vital to the best defense in both matters.

For more information, please contact Barbara Mulholland at (404) 633-9230.

Court Requires That You Consider Fair Use Before Sending A DMCA Takedown Notice

A judge has ordered in the Lenz v. Universal Music that copyright owners must consider whether an unauthorized use of a copyrighted work qualifies as fair use before sending a “DMCA takedown notice.”  A takedown notice is used by copyright owners to ask Internet Service Providers (ISP) to remove their materials that have been posted without permission.

 

Enacted in 1998, the Digital Millennium Copyright Act (DMCA) implemented treaties signed at the 1996 World Intellectual Property Organization (WIPO) Geneva conference.  It addresses many issues, one of which affects copyright owners directly. The DMCA states that while an ISP is not liable for transmitting information that may infringe a copyright, the ISP must remove materials from users’ websites that appear to constitute copyright in­fringement after it receives proper notice. The letter you send is called a “DMCA takedown notice.”  The ISP is required to make its agent’s name and address available so that you can send them notification.  Your copyright does not have to be registered with the U.S. Copyright Office for you to take advantage of this DMCA provision.

 

 

In the Lenz case, the plaintiff sued Universal Music for claims resulting from Universal’s sending a DMCA takedown notice for a video posted on the Internet by Lenz.  Lenz had posted a video of her toddler son dancing to Prince’s song, “Let’s Go Crazy,” on YouTube.  Counsel for Universal Music sent YouTube a DMCA takedown notice claiming that the video infringed its copyright in the music. YouTube complied and notified Lenz about the takedown. Lenz sent a counter-notification and the site put the video back up about six weeks later.

 

 

Lenz claimed that her video did not infringe Universal’s copyright because it was fair use.  The Lenz court held that a copyright owner must consider whether an unauthorized use of a copyrighted work qualifies as fair use before sending a DMCA takedown notice.  Although Universal Music argued that fair use is difficult to determine, the court found that to not be an excuse.

 

Clearly, the DMCA statute requires that a takedown notice include:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be   disabled, and information reasonably sufficient to permit the service provider to locate the material.

 (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

 (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

17 U.S.C. Section 512(c)(3)(A) (emphasis added). The Lenz court focused on the 5th requirement for its finding at issue here.

So what is a copyright owner to do when fair use is a tough call even for lawyers? Review the law as to what comprises fair use. Check this article on fair use to help. But as long as you have a good faith belief that the infringement is not fair use, you should be protected in your demand that infringing materials be removed from a website.

For more information, please contact Carolyn Wright at (404) 633-9230.

Workers’ Compensation Liability for Unexplained Falls

Accidents happen both on and off the job.  Sometimes, injuries such as tripping and falling down happen without explanation.  Are those accidents covered by workers’ compensation?

In Georgia, an injury is compensable under workers’ compensation when it satisfies the following three criteria: (1) it is the result of an accident; (2) it arises out of the worker’s employment; and (3) it occurs in the course of employment.  O.C.G.A. 34-9-1(4).  Traditionally, Georgia courts determined if an injury arose out of employment by assessing whether the causative danger was peculiar to the work.  That means that an injury is covered by workers’ compensation if the employment brings an employee “within the range of the danger by requiring his presence in the locale” when the peril occurs, even if any other person present would have been injured regardless of their employment.  However, this doctrine does not apply when the risk causing claimant’s injury is common to the general public and exists without any connection to “place, employment or pursuit.”  National Fire Insurance Co. v. Edwards, 152 Ga.App. 566, 263 S.E.2d 455 (1979).

Trips and falls can happen anywhere.  Sometimes they are a result of a hazard in the area.  Other times, they seemingly occur without explanation.  Under the principle established by the Georgia code and Edwards, an unexplainable fall is not compensable under workers’ compensation even if it occurred in the course of employment if it did not arise out of the employment.  To show that an injury did not arise out of employment, the employer must prove that:    

1.      No rational connection existed between the claimant’s job duties and the fall;

2.      Claimant’s injury did not result from a particular cause;

3.      The hazard that caused claimant’s injury was that of walking, and claimant was equally exposed to this hazard outside of work; and

4.      Claimant did not hit or impact an object specifically related to the work place as part of the fall other than the floor. 

See generally, id.; Borden Foods Co. v. Dorsey, 112 Ga.App. 838, 146 S.E.2d 532 (1965); Davis v. Houston General Insurance Co., 141 Ga.App. 385, 233 S.E.2d 479 (1977); Prudential Bank v. Moore, 219 Ga.App. 847, 467 S.E.2d 7 (1996); and Chaparral Boats, Inc. v. Heath, 269 Ga.App. 339, 606 S.E.2d 567 (2004).

For example, in Chaparral Boats, Inc., the claimant hyper-extended her left knee while walking across her employer’s premises to clock in to work.  Claimant could not show that she tripped or fell over any object.  The injury occurred in the course of claimant’s employment because it took place during a reasonable period of ingress from claimant’s car to the workplace.  Nevertheless, the Court concluded that claimant’s injury resulted solely from walking, and that claimant was exposed to this risk equally apart from work as she was at work.  Thus, an employer is not liable when the employee’s injury does not arise out of the employment. 

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

The Importance of Conditions In Your Free License

Copyright owners often allow others to use their work without charge. They usually require a copyright credit for marketing purposes or other restrictions. But if the user doesn’t abide by those requirements, is it copyright infringement?

Such was the issue in the recent case of Jacobsen v. Katzer. There, Jacobsen had developed copyrighted software code for model trains but permitted others to use the software. Jacobsen’s “open source” code included an “Artistic License” that required users of the software to include items such as the authors’ names and Jacobsen’s copyright notices. Katzer admitted that it had not followed these terms when incorporating Jacobsen’s code into its own.

Jacobsen claimed that Katzer’s use of the software without abiding by the terms of the License constituted copyright infringement. Katzer asserted that because it had not paid for the License and only breached “covenants” of the License, it could be liable only for breach of contract, not copyright infringement, likely resulting in fewer damages.

The 9th Circuit sided with Katzer. On appeal, the Court of Appeals for the Federal Circuit disagreed. The appellate court held that the terms of the Artistic License were conditions; without following them, Katzer had no right to use the software code. The Court explained:

The Artistic License states on its face that the document creates conditions: “The intent of this document is to state the conditions under which a Package may be copied.” (Emphasis added.) The Artistic License also uses the traditional language of conditions by noting that the rights to copy, modify, and distribute are granted “provided that” the conditions are met. Under California contract law, “provided that” typically denotes a condition.

 

and

 

Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. . . . Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes rather than as a dollar-denominated fee, is entitled to no less legal recognition.

Of note, the Creative Commons Corp. filed an amicus brief to support Jacobsen’s position because a negative ruling would directly affect CC licensing.

What can we learn from this? Always make the use of your copyrighted works conditioned on following your terms. Further, it’s always best to put your license in writing, even if it’s only an email, so a court will know exactly what were the terms and conditions of your license. Check with your attorney to make sure it’s all done right.

For more information, please contact Carolyn Wright at (404) 633-9230.

Announcing: Georgia Workers’ Compensation Legislative/Board Rule Changes

The Georgia Workers’ Compensation Legislative/Board has announced its rule changes for 2008.   Following is a quick summary of the revisions:

Workers’ Compensation Board Rule Changes

Rule 15:  Stipulations are limited to 25 pages including supporting documents unless prior approval is given by the Board.  Also, on the first page of the stipulations, leave a 5” space for the approval stamp.

Rule 40:  The addresses for Board in Covington and Rome have been updated.

Rule 60:  All forms, documents and correspondence must be served on opposing counsel by email unless they are not available (then you may use regular mail).

Rule 61:  Panels no longer have to be on pink forms. Service must be made on opposing counsel by email when filing forms, etc.; Documents should be filed with the Board online and only “misc” document types are those  that do not require any action. The Alternative Dispute Resolution (“ADR”) Unit has the power to reset/cancel mediations.

Rule 102:  Ex parte email communications with a judge or the Board on a pending case are prohibited.  Leaves of absences can be filed online:  WC102d forms must be used only for motions/objections other than Motions for Reconsideration (“MFR”) and Request for Change of Physician/Additional Treatment.  When filing a MFR, you must call the Administrative Law Judge (“ALJ”) /WC Board by phone and use the Integrated Case Management System (ICMS”) doc-type “Motion for Reconsideration”.  These motions are limited to 20 pages and served on all parties.

Rule 103:  Addresses the same procedure as outlined in Rule 102 for filing a Motion for Reconsideration (“MFR”) before the Appellate Division.

Rule 108:  Deals with extensions on payments of attorney’s fees on catastrophic claims and clarifies when fees will be awarded on a weekly basis (% of weekly check) i.e., opposing counsel must show he actually did something to get the benefits started.

Rule 200: Creates a new section addressing in change of physician cases.

Rule 200.1 Lessens the time to object to a change in rehab supplier to 15 days, down from 20 days.  When an appeal of a denial for an application for registration/renewal/reinstatement of a rehabilitation supplier is made, the appellant has 20 days, instead of 15.

Rule 226 Deals with guardianships’ submissions process and objections/MFR.

Rule 240 Requires that the job description be served on opposing counsel at the same time it is submitted to the Authorized Treating Physician.  Old language used “should” rather than “shall.”

Legislatively, only section 34-9-358 was extensively revised.  This statute deals only with the assessments made against employers/insurers for the Subsequent Injury Trust Fund (“SITF”).  34-9-368 was amended slightly in conformity with the changes to 358.

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

Service of the Lawsuit on the Insurance Company for Uninsured Motor Coverage

After a car accident, a driver may sue the person who caused the incident to recover damages.  If the defendant doesn’t have insurance, the driver then may try to recover against her own insurance company under the uninsured motorist (UM) policy.  But when does the driver have to give her insurance company notice of her lawsuit for UM coverage?

 

The Georgia Court of Appeals recently considered whether service on the UM carrier in a renewal action was timely.  In Hayward v. Retention Alternatives Ltd., ___ S.E.2d ___, 2008 WL 1794844 (Ga. App. April 18, 2008), Hayward sued Stridiron to recover for damages resulting from a car accident shortly before the statute of limitations expired.  Hayward served the complaint on her primary UM carrier, but did not serve Retention Alternatives Limited (RAL), her excess carrier.  Hayward voluntarily dismissed her first lawsuit. Less than six months later, Hayward renewed her action and served RAL with the renewed complaint. 

 

RAL moved for summary judgment, arguing that the complaint was not served timely.  Since Hayward knew Stridiron was possibly uninsured before or shortly after she filed her original complaint, RAL claimed that O.C.G.A. § 33-7-11 required Hayward to serve RAL during the first lawsuit.  The Court of Appeals disagreed, holding that the UM service requirement is not intended to establish personal jurisdiction over the insurer or make it a defendant in the underlying tort action.  Instead, the Court held that O.C.G.A. § 33-7-11 requires only that the insurance carrier have notice of the lawsuit in which it ultimately may be found financially responsible.  Thus, service against a UM carrier in a renewal action satisfies the Uninsured Motorist Act, O.C.G.A. § 33-7-11. 

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

Pain Is Not Enough!

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.