20% Late Payment Penalty in No-Liability Workers’ Comp Settlements is Statutory and Automatic

In Brewer v. WellStar Health System, ____ Ga.App. _____, 2012 WL 540081 (Feb. 21, 2012), the claimant suffered a compensable back injury while on the job and he and his self-insured employer entered into a stipulated settlement agreement. The Board approved the award on July 7, 2009. The Board, at that time, was aware that some parties were not receiving automated e-mail notices of stipulation approvals. In this case, the notice was not received by employer, employer’s servicing agent, or employer’s counsel. On August 4, 2009, Claimant requested the 20% penalty be imposed on employer/self-insurer. This was the first notice employer received that the stipulation had been approved. Employer immediately sent the settlement checks, which arrived to Claimant within one week. The ALJ found that because the provisions of O.C.G.A. § 34–9–221(f) accrue automatically upon approval, and the settlement agreement was approved on July 7, 2009, Employer should be properly penalized the 20% late fee. The ALJ further found that nothing in the Act made Employer’s compliance with the statutory requirement to timely pay the award contingent on its being notified that the board had approved the settlement agreement and issued an award; and, further, Employer had the responsibility to inform itself that the board had issued an award. The Board’s Appellate Division reversed, and the Superior Court affirmed, on the basis that the Board has discretion under O.C.G.A. § 34–9–15(b) as to whether a late penalty should be assessed and that no penalty should be assessed on the present facts. The Court of Appeals held that the statute does not provide discretion, noting that it “applies solely to no-liability stipulated settlements and does not give the board discretion to determine whether to assess the penalty required under O.C.G.A. § 34–9–221(f) for failure to timely pay an award issued on an approved liability stipulated settlement where an injury compensable under the Act has been established.”

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.

Constructive Knowledge Lands Storeowner in Puddle

On March 12, 2012, the Georgia Court of Appeals reversed a Glynn County Superior Court finding of summary judgment in favor of a storeowner where Plaintiff slipped and fell in a puddle of wine along the rear aisle of the store. Bradley v. Winn-Dixie Stores, Inc., 12 FCDR 878 (Ga.App. March 2, 2012). There, to prove Winn-Dixie had constructive knowledge of the spill, Plaintiff pointed to her own testimony that a store employee was in the immediate vicinity of the hazard at the time of the fall. The trial court, however, found that Plaintiff had given contradictory testimony about this alleged employee and, applying the rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (1986) (Testimony of party who offers himself as witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal), viewed this testimony in an unfavorable light. Because of this position on the testimony, the trial court awarded summary judgment to the store. The Court of Appeals reversed the trial court as Plaintiff’s initial statement that store employee was “facing” her when she fell, and later statement that employee was “facing the side” of her, were not contradictory, and thus would not be construed against her. Because contradictory testimony, which may be construed against a party relying exclusively on that testimony in opposition to summary judgment, is not to be construed against a party if she offers a reasonable explanation for the contradiction, the Court found that there was at least a genuine issue of material fact as to whether the storeowner had constructive knowledge of the hazard and, therefore, summary judgment should have been precluded.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.

Based On Assumption of Risk, Court of Appeals Reverses Verdict for Plaintiff

Recently, the Georgia Court of Appeals reversed a Gwinnett State Court verdict of $317,002 in favor of plaintiffs where the injured plaintiff “was clearly aware of the potential danger of injury” and “deliberately chose to operate the vehicle despite the risk.” Yamaha Motor Corp., USA v. McTaggart, 2011 WL 5529843 (Ga.App. Nov. 15, 2011). There, the plaintiff was injured when the vehicle, a Yamaha Rhino off-road vehicle with no doors or windows, rolled over onto his leg. Plaintiffs (injured party and wife) argued that the vehicle was defective because it did not have a door; however, the injured plaintiff testified that the vehicle was useful to him specifically because of the absence of a door for easy ingress and egress in his capacity as a gravedigger. He also testified he understood the warnings and instructions posted on the vehicle, had read the operator’s manual, and had significant experience with off-road vehicles prior to the purchase of the subject vehicle. The Court held that because the injured plaintiff chose “a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not,” the defendant should be granted its directed verdict as the injured plaintiff assumed the risk of his injuries as a matter of law.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.