Archive for the 'Workers’ Compensation' Category

Workers Compensation: After Termination for Cause, Claimant Has Burden to Prove Causal Relation Between Injury and Inability to Find Work

In Veolia Environmental Services v. Vick, 309 Ga.App. 658 (2011), the claimant was injured when he fell off a piece of equipment at work and began receiving TTD benefits until he returned to light duty work. After he was terminated for failing to follow the employer’s drug policy, the claimant sought an award of TPD benefits from the time he returned to light duty until his last day of work, in addition to TTD benefits from his last day of work and continuing. After a hearing, the ALJ denied TTD benefits because the claimant had not made a sincere and diligent effort to find other work. However, the ALJ did award TPD benefits for the requested time period following termination and further concluded that such benefits should continue because the employer had not met its burden to prove a change in condition.

On appeal, the Georgia Court of Appeals noted that if a claimant accepts TPD benefits and does not seek to return to a higher benefit level of TTD, then the lower benefit level of TPD would continue after termination of the light-duty job. Here, the claimant requested and was awarded TPD benefits during the time he returned to light duty and then further sought TTD benefits after termination of his light-duty job. Under such circumstances, the claimant has the burden of proving his entitlement to the higher level of benefits requested after termination. Furthermore, in seeking a resumption of benefits, the burden is on the claimant to show that, after his termination for cause, his inability to secure suitable employment elsewhere was proximately caused by his work-related injury. Therefore, the Court held that because the claimant failed to make a sincere and diligent effort to secure other employment, the claimant could not prove that his inability to find a job was causally related to his injury.

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

Court of Appeals Affirms Board’s Finding that Claimant Failed to Make Diligent Job Search

In Brown Mechanical Contractors, Inc. v. Maughon, ____ Ga.App. ____, 2012 WL 1948787 (May 30, 2012), the issue was whether the Claimant, Maughon, was entitled to temporary total disability (“TTD”) benefits based on evidence of his job search after being laid off by the employer, Brown Mechanical, for reasons unrelated to his disability.  Evidence showed that Maughon looked for work with “well over 100” employers over more than six months.  Maughon provided a log documenting his activities and further testified that he received three job offers which were rescinded after disclosure of his injury/work restrictions.  The ALJ determined that the job search was sufficient and Maughon was entitled to TTD.  The Board, however, concluded that 110 job searches over 144 “work days” is not sufficient as it equates to less than one job search per day.  The Board also received evidence that Maughon did not follow-up with 22 of the 110 employers, failed to search for periods of time lasting up to 27 days, and Maughon was concentrating his job search in labor when his experience is managerial/sales.  The Board concluded that this failure to seek relevant jobs was an attempt “to avoid being hired in order to bolster his claim for indemnity benefits” and, along with findings on the other above-mentioned evidence, overruled the ALJ and denied TTD benefits.  The Court of Appeals agreed with the Board, following the standard of review in Master Craft Flooring v. Dunham, 308 Ga.App. 430, 434 (2011)(role of reviewing court is to determine whether the Board’s findings are supported by any evidence).

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

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.

Workers’ Compensation Claimant Not Required to Authorize Ex Parte Communications with Treating Physician

The Georgia Court of Appeals recently issued a ruling which appears inconsistent with common practices in the workers’ compensation setting and held that a claimant is not required, as a condition of receiving benefits, to execute a release authorizing a treating physician to engage in ex parte (i.e. outside of the claimant’s or the claimant’s attorney’s presence) communications with the claimant’s employer. In McRae v. Arby’s Restaurant Group, Inc., 2011 WL 6015797 (Ga.App., Dec. 1, 2011), the claimant sustained a compensable injury, began receiving income benefits, and signed a Form WC-207 authorizing the release of her medical information. The employer’s attorneys subsequently tried to schedule an ex parte consultation with the physician, but the physician declined to meet with them unless they obtained express permission from the claimant. The Board subsequently ordered the claimant to sign a release authorizing her physician to speak with the employer’s attorneys, reasoning that the claimant could informally contact her physician and inquire about any communications made with the employer.

On appeal, the Georgia Court of Appeals noted that the Workers’ Compensation Act provides that a claimant waives her right to privacy regarding related “communications…that the employee has had with any physician” and directs a physician to disclose to the employer “all information and records” related to the employee’s treatment for the injury. The Act also requires a claimant to give the employer a release for “medical records and information” related to the claim. See O.C.G.A. § 34-9-207. The court held that nothing in the Act indicates that the word “information” was intended to extend to ex parte communications.

Additionally, the court compared workers’ compensation claims to medical malpractice lawsuits. In doing so, the court noted the dangers associated with ex parte interviews of physicians, including the potential for unwarranted probing into irrelevant matters, unintended disclosure of sensitive information, and improper influence by defense counsel. Furthermore, unlike a patient who sues for medical malpractice, an injured employee has no choice in whether to participate in the workers’ compensation process. Therefore, the court was especially hesitant to compel a workers’ compensation claimant to authorize such ex parte communications.

It should be noted that the court stopped short of deciding whether an employer is otherwise prohibited from ex parte interviews under the terms of a qualified protective order.

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

Workers Compensation: After Termination for Cause, Claimant Has Burden to Prove Causal Relation Between Injury and Inability to Find Work

In Veolia Environmental Services v. Vick, 309 Ga.App. 658 (2011), the claimant was injured when he fell off a piece of equipment at work and began receiving TTD benefits until he returned to light duty work. After he was terminated for failing to follow the employer’s drug policy, the claimant sought an award of TPD benefits from the time he returned to light duty until his last day of work, in addition to TTD benefits from his last day of work and continuing. After a hearing, the ALJ denied TTD benefits because the claimant had not made a sincere and diligent effort to find other work. However, the ALJ did award TPD benefits for the requested time period following termination and further concluded that such benefits should continue because the employer had not met its burden to prove a change in condition.

On appeal, the Georgia Court of Appeals noted that if a claimant accepts TPD benefits and does not seek to return to a higher benefit level of TTD, then the lower benefit level of TPD would continue after termination of the light-duty job. Here, the claimant requested and was awarded TPD benefits during the time he returned to light duty and then further sought TTD benefits after termination of his light-duty job. Under such circumstances, the claimant has the burden of proving his entitlement to the higher level of benefits requested after termination. Furthermore, in seeking a resumption of benefits, the burden is on the claimant to show that, after his termination for cause, his inability to secure suitable employment elsewhere was proximately caused by his work-related injury. Therefore, the Court held that because the claimant failed to make a sincere and diligent effort to secure other employment, the claimant could not prove that his inability to find a job was causally related to his injury.

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

Georgia Court of Appeals Revisits Standard of Review in Workers’ Compensation Appeals

In Bonus Stores, Inc. v. Hensley, 2011 WL 1238420 (Ga.App., 2011), an ALJ granted TTD benefits after finding that the claimant had sustained a catastrophic injury. In its award, the ALJ relied on the conclusions of the claimant’s family physician and vocational specialist that the claimant could not perform any jobs in the national economy. On appeal, the appellate division conducted a de novo review of the entire record and noted that other physicians and specialists had more recently concluded that the claimant could work with no or few restrictions and reversed the ALJ’s award of catastrophic designation. The claimant appealed and the superior court found that the appellate division erred by improperly applying a de novo standard of review and that the application of the correct standard required it to uphold the ALJ’s award.

On appeal, the Georgia Court of Appeals noted that pursuant to O.C.G.A. § 34-9-103(a), the ALJ’s findings of fact “shall be accepted…where such findings are supported by a preponderance of competent and credible evidence” and the appellate division is limited to the evidence that was received by the ALJ. However, if after assessing the evidence in the record, the appellate division concludes that the award does not meet the statutes’ evidentiary standards, it may substitute its own alternative findings for those of the ALJ. The appellate division is authorized to draw factual conclusions different from those reached by the ALJ. In reversing the superior court, the Georgia Court of Appeals found that, after weighing the evidence received by the ALJ, the appellate division concluded that the preponderance of evidence did not support a finding of a catastrophic injury. Therefore, the appellate division substituted its own findings for those of the ALJ, as it was authorized to do.

The Court went on to point out that unlike the appellate division, the superior court performs a more limited review. The factual findings of the appellate division, when supported by “any evidence,” are conclusive and binding on the superior court and it may not substitute itself as a fact-finding body in lieu of the appellate division. Therefore, because there was “some evidence” that Claimant’s injury was not catastrophic, the superior court erred in reversing the appellate division.

In a case decided the following day, the Georgia Court of Appeals reaffirmed its holding in Hensley. In Georgia Mount Excavation, Inc. v. Dobbins, 2011 WL 1287902 (Ga.App., 2011), the appellate division reversed an ALJ’s award of TTD benefits and the claimant appealed to the superior court, which concluded that the evidence did not support the decision of the appellate division and reinstated the ALJ’s award. The Georgia Court of Appeals held that because the record contained “some competent evidence” to support the findings of the appellate division, the superior court had no authority to set aside the decision.

As these cases demonstrate, with respect to workers’ compensation appeals, the appellate division has discretion to substitute its own findings for that of the ALJ, whereas the superior court’s review is limited by the highly deferential “any evidence” standard.

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

Court Imposes Strict Requirements for Unilateral Reduction of Income Benefits

An employer may unilaterally reduce an employee’s temporary total disability (“TTD”) benefits to temporary partial disability (“TPD”) benefits if the employee fails to return to work within one year after the treating physician releases the employee to work with restrictions. Under O.C.G.A. § 34-9-104(a)(2), the employer must provide notice to the employee that he or she has been released to return to work with restrictions within 60 days of the employee’s release. An employer may unilaterally reduce benefits by filing a form indicating the reason for the reduction. Board Rule 104 further provides that the employer must send the appropriate form to the employee “with an attached medical report…no later than 60 days after the date that the employee was determined able to return to work….”

The Georgia Court of Appeals recently held that an employer could not use a subsequently prepared release to comply with the 60-day period and cure a prior untimely notice. Kaolin v. Blackshear, 2010 WL 3565709 (Ga.App. 2010).

On May 24, 2001, the claimant was injured at work and the employer began paying TTD benefits. On June 11, 2001, the claimant’s doctor released him to return to work with restrictions. In January 2002, the employer informed the claimant that his TTD benefits would be reduced to TPD payments effective June 4, 2002. The employer, however, never actually reduced the claimant’s benefits, presumably because it failed to send appropriate notice within the 60-day period. Instead, it obtained a new release, dated December 31, 2002, from another physician who conducted an evaluation in August 2002. On January 14, 2003, the employer notified the claimant that his benefits would be reduced on December 31, 2003. On February 8, 2008, the employer suspended TPD payments because the claimant had been paid the maximum amount.

In October 2008, the claimant requested that his TTD benefits be reinstated because he had never been timely notified of the unilateral reduction. Finding that the June 2001 release and the December 2002 release were substantively the same, the Board concluded that the employer failed to provide notice within 60 days of the June 2001 release and reinstated the claimant’s TTD benefits.

On appeal, the Georgia Court of Appeals held the notice was invalid not because it was similar to the previous notice, but because it was issued more than 60 days from the time the restrictions were “determined.” The statutes and rules assure that a unilateral suspension of benefits is based upon a reasonably concurrent determination of the claimant’s condition, not a mere reaffirmation of an otherwise untimely examination. Here, the notice was generated over five months from the last medical evaluation. Therefore, regardless of when the notice was articulated, it could not have been based upon any determination within the 60-day period. Employers and insurers should make sure to strictly adhere to the 60-day notice provision in order to comply with the statutory requirements for unilateral reduction of benefits. Failure to do so may result in reinstatement of benefits, even with a valid release.

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

Court of Appeals of Georgia Presents Seemingly Inconsistent Opinions on Compensability of Work-Related Injuries

Which of the following injuries are compensable: (1) a nurse twists her knee while standing and turning to get water for a patient or (2) a custodian dislocates her knee while bending down to pick up her own dropped pill?  Because a compensable injury must arise out of and in the course of employment, one might conclude that the former injury is compensable while the latter injury is not.  The Court of Appeals of Georgia, however, disagreed and held the opposite.

On March 17, 2006, Wendy Harris, a custodian at the Peach County Courthouse, was discussing work issues with her supervisor when she realized a diuretic pill she had placed in her pocket had fallen on the floor.  When her supervisor pointed it out to her, she bent down to pick up the pill and dislocated her knee.  Harris’s supervisor testified that Harris’s job duties included removing foreign objects from the floor, regardless of whether the object was her own medication.  Because bending over to remove an object from the floor was incidental to and in furtherance of Harris’s employment as a custodian, the Court of Appeals of Georgia deferred to the Board’s finding of compensability.  Harris v. Peach County Bd. of Comm’rs, 296 Ga.App. 225 (2009).

 A different result was reached in a case where Susan Ward, a nurse, twisted her knee while turning around to get a patient some water to take medication.  St. Joseph’s Hospital v. Ward, 300 Ga.App. 845 (2009).  The Court of Appeals of Georgia relied on its decision in Chaparral Boats v. Heath, 269 Ga.App. 339 (2004), which held that there is no causal connection between the employment and the injury where the injury is “caused by a risk to which the employee would have been equally exposed apart from the employment.”  Citing deference to the Board, the Court affirmed the appellate division’s finding that Ward “was not exposed to any risk unique to her employment by standing and turning.”  The Court reconciled its opinion with the Harris decision by pointing out that the latter case presented evidence from which the Board could conclude that the employee was engaged in activity (i.e. bending to pick up an object) to which she might not have been equally exposed apart from her work.

 It appears that Ward produced an unfair result in that one could make a valid argument that turning to retrieve water for a patient is just as incidental to one’s employment as bending to pick up an object.  Perhaps if Ward’s supervisor had testified that a nurse’s job duties included providing water to a patient, the Court would have reached a different conclusion.  Although the opinions offer little guidance as to what specific evidence is needed, the Court of Appeals of Georgia seems to require actual evidence, beyond a common-sense argument, that the injury-causing activity was related to the employee’s work.

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

Idiopathic Injuries in the Workplace: Compensable?

In order for a workplace injury to be compensable, it must arise out of and in the course of employment.  An injury arises out of employment where there is some causal connection between the conditions under which the employee worked and the resulting injury.  For example, if a warehouse employee hurts his back while picking up a box, the injury likely arises out of his employment because the heavy lifting required by the job caused the injury.  But what if an employee is injured as a result of an “idiopathic” accident?  An idiopathic injury is an injury arising spontaneously or from an obscure or unknown cause or from a personal condition of the employee. 

Generally, idiopathic injuries are not compensable because they do not arise out of employment, even if they do occur in the course of employment.  However, the courts recognize a narrow exception when the employee comes into contact with some object specifically related to the employment because of the increased risk caused by the presence of the employment-related object.  For example, in U.S. Cas. Co. v. Richardson, 75 Ga.App. 496 (1947), an employee with an epileptic condition suffered a seizure and fell in such a way that he struck the sharp edge of a work table, and the court found the injury to be compensable because the table increased the risk of injury from an otherwise idiopathic fall.  The court also held that an idiopathic injury may be compensable if it occurs “on a stairway or into a machine or against anything except the bare floor, and especially if the fall is from a height, as the risk of injury is increased, or is a special danger of the employment.”  By contrast, in Prudential Bank v. Moore, 219 Ga.App. 847 (1996), the employee fainted and struck her head on the baseboard of a wall at her workplace, but the court rejected the argument that the baseboard was a work-related object.  The court held that a baseboard, just like a floor, is a mere structural hazard that the claimant is equally exposed to apart from her employment.  In a more recent case, Chaparral Boats, Inc. v. Heath, 269 Ga.App. 339 (2004), the employee was walking at a rapid pace when she suddenly felt pain in her left knee, but there was no evidence that she slipped, tripped, or fell at the time of the injury, nor was there any evidence that she came into contact with any object.  The court reaffirmed the holding in Richardson and found that because the employee “did not fall from a height or strike any work-related object when she incurred the knee injury, there was no basis for concluding that the injury was compensable.”

Consequently, whether an idiopathic injury is compensable will depend on the facts  surrounding the accident: “Where the cause of the fall is personal to the worker (as a non-industrial heart attack, dizzy or epileptic spells, or any idiopathic condition) the fact that the floor is of rough cement instead of wood and hence more dangerous, is no ground for an award…But awards are upheld…if the fall is on a stairway or into a machine or against anything except the bare floor, and especially if the fall is from a height, as the risk of injury is increased, or is a special danger of the employment.”  Chaparral Boats, 269 Ga.App. at 347.

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

Statute of Limitations for Catastrophic Workers Compensation Claims

The issue of whether, and what, statute of limitations applies to claims for catastrophic designation has previously remained unanswered in Georgia.  A trio of cases – two already decided by the Georgia Court of Appeals and one fully briefed and under consideration – will provide answers to these questions and will establish in what, if any, circumstances the statute of limitations regarding a catastrophic claim can be tolled.

As a brief background, under Georgia workers’ compensation law, an injured employee’s entitlement to income benefits is capped at 400 weeks.  However, if an injury is deemed to be catastrophic, the injured worker is entitled to lifetime income benefits.  A catastrophic injury must fit in one of five categories: “(1) spinal cord injury involving severe paralysis of an arm, a leg, or the trunk; (2) amputation of an arm, a hand, a foot, or a leg involving the effective loss of that appendage; (3) severe brain or closed head injury…; (4) second or third degree burns…; (5) total industrial blindness; or (6) any other injury of a nature and severity that prevents the employee from being able to perform his or her prior work or any work available in substantial numbers within the national economy for which such employee is otherwise qualified.”  O.C.G.A. § 34-9-200.1(g).  Most claims which fit into the first five (5) categories are relatively easy to discern, but the “catch-all” sixth category has generated substantial litigation. 

The first of three recent cases that will finally solidify the law as to what statute of limitations applies to requests for catastrophic designation and when, and if, the statute is tolled is Williams v. Conagra Poultry of Athens, Inc., 295 Ga. App. 744, 673 S.E.2d 105 (2009).  In Williams, the employee injured her neck and shoulders in November 1992.  She received income benefits for the full 400 weeks, ending in April 2001.  In March 2002, she requested that the State Board of Workers’ Compensation deem her injury catastrophic.  Her request was denied in August 2002.  She filed a second request in April 2003, which was denied as well.  With this denial, the State Board stated that the employee could submit another request if she included the proper documentation.  Ms. Williams did not appeal either decision, but submitted another request in September 2003, which was granted.  The employer appealed.  The Court of Appeals held that requests for catastrophic designation, at their essence, are requests for change of condition in status.  O.C.G.A. § 34-9-104(b) sets the statute of limitations for requests for change of condition claims and requires that any request be made within two (2) years after the last payment of income benefits.  Therefore, to be deemed timely, a request for catastrophic designation must be filed within two (2) years after the last payment of income benefits.  The Court held that the September 2003 request at issue was not timely and, as such, barred by the statute of limitations.

The second case that addresses the statute of limitations issue is Tara Foods v. Johnson, ___ S.E.2d ____, 2009 WL 783011 (Ga. App. 2009).  In Johnson, the employee injured her neck in November 1992 and she received income benefits until August 2001.  In November 2002, Ms. Johnson filed a WC-14, marking only “notice of claim,” indicating that she was not seeking a hearing but only income benefits from August 28, 2001, and continuing for catastrophic designation.  No action was taken.  In August 2005, Ms. Johnson filed another WC-14, requesting payments of medical expenses.  This dispute was resolved and the Consent Agreement indicated that there were no additional issues to be heard.  In September 2006, Ms. Johnson filed another WC-14, this time indicating that she was requesting a hearing.  She also checked the box for catastrophic designation.  The State Board determined that her request for catastrophic designation was untimely.  On appeal to the Court of Appeals, the Court reiterated its holding in Williams that claims for catastrophic designation are subject to the two (2) year statute of limitations of O.C.G.A. § 34-9-104(b).  Additionally, the Court held that Ms. Johnson’s 2002 WC-14 only gave notice of her claim and failed to meet the requirements of O.C.G.A. § 34-9-104(b) and, therefore, it was not proper application.  As such, and consistent with its opinion in Williams, the Court of Appeals held that Ms. Johnson’s first proper request for catastrophic designation was not made until September 2006 and was barred by the applicable statute of limitations.

The final case that addresses the statute of limitations for catastrophic designations is the case of Kroger Co. v. Wilson, Appeal No. A09A1226, currently pending before the Court of Appeals.  In this matter, Mr. Wilson injured his back in June 1994.  He returned to work, was injured in 1998, and returned to work for a different employer until 2004.  Mr. Wilson received his statutory maximum weeks of income benefits and last received income benefits in September 2001.  In August 2003, Mr. Wilson, while gainfully employed, filed a WC-14 seeking income benefits from September 2001 and continuing.  He made no mention of catastrophic designation.  In October 2003, Mr. Wilson dismissed the hearing request, “not to be re-set.”  In April 2006, Mr. Wilson filed a WC-R1CATEE seeking catastrophic designation.  The State Board ruled that Mr. Wilson’s April 2006 request was barred by the statute of limitations and his August 2003 request did not provide the employer with notice he was seeking benefits for catastrophic designation.  This decision was reversed by the Appellate Division, which held that Mr. Wilson was entitled to catastrophic designation.  The Superior Court upheld the Appellate Division’s opinion and the case is currently pending before the Court of Appeals.

In light of the recent related cases of Williams and Johnson, it appears likely that the Court of Appeals will determine that Mr. Wilson’s request for catastrophic designation was not timely filed and was barred by the statute of limitations.  Should the Court of Appeals provide full analysis, as it did in Williams and Johnson, the issue of the application and potential tolling of the statute of limitations with regard to catastrophic claims should be clearly established.  However, both Williams and Johnson have been appealed to the Georgia Supreme Court and, regardless of the decision, Wilson is likely to be appealed as well.  The final result, regardless of the outcome, will give both employees and employers direction as to the time frame in which a claim for catastrophic designation must be filed.

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


Subscribe to the Buckley Brown Blog!

Categories