Recent Workers Compensation Updates

ATTORNEYS' FEES

Waters v. PCC Airfoils, LLC, 2014 Ga. App. LEXIS 425, 760 S.E. 2d 5 (June 26, 2014)

Court of Appeals of Georgia, No. A14A0436

The Court of Appeals held that the Superior Court of Coffee County erred in reversing an award of attorney's fees by the State Board of Workers' Compensation since inconsistent statements made by the injured employee's treating physician provided some evidence to support the Administrative Law Judge's determination that the employer's defense was unreasonable in part pursuant to O.C.G.A. § 34-9-108 (b) (1).

The Court of Appeals granted Janet Waters' discretionary appeal to address the

Issue of whether, given conflicting information about Waters' injuries, the superior court erred in reversing an award of attorney fees by the State Board of Workers' Compensation against her former employer, PCC Airfoils, on the grounds that PCC Airfoils had unreasonably defended against her claim for benefits pursuant to O.C.G.A. § 34-9-108 (b) (1).

Waters did touch up work for PCC Airfoils for approximately 20 years, using an air gun to grind bits of excess metal off of parts. The job required her to use her right hand to "mash" the air gun, and to use her left hand to flip, turn and move the part. She was diagnosed with "severe bilateral median nerve entrapment in the carpal tunnel right much worse than left," three days after her initial injury on October 23, 2009, by Dr. David M. Banks, whom Waters chose from a panel of physicians.

On November 17, 2009, Dr. Banks noted that "no significant repetitive duties are required from the left hand"; however, on November 23, 2009, Dr. Banks recommended surgery on both wrists. Dr. Banks' notes also contained mention of "workers' compensation issue."

A hearing before an ALJ was held regarding both the October and November 2009 injury dates. Waters testified that although surgery was recommended on both hands, she chose not to have the surgery performed on both hands at once so she could retain use of one hand. None of her physicians testified.

On December 16, 2009, Waters had carpal tunnel release surgery only on her right wrist. PCC Airfoils, as self-insurer, paid for the surgery. Waters still experienced pain and returned to work in several lighter duty jobs. Waters' last day of work was November 4, 2010; she had carpal tunnel release of her left hand on December 22, 2010.

In June 2011, Dr. Banks signed a statement to the effect that Waters' conditions with respect to her left upper extremity, legs, or shoulder were not related to her work activities. Only Waters' right wrist injury was work-related, and her other problems were not related to the right wrist injury.

After Waters made workers' compensation claims for the October 23, 2009 and November 4, 2009 injuries, the ALJ awarded benefits for Waters' left carpal tunnel condition, reimbursement of medical expenses, and attorney fees representing 25% of income benefits related to the October 2009 injury only. The ALJ denied her request for benefits related to the November 2009 injury. PCC Airfoils appealed to the Appellate Division, which fully adopted the Board's decision, and then the Superior Court of Coffee County, which affirmed the award of benefits and medical expenses of Waters' left carpal tunnel condition and reversed the award of attorney fees.

The Court of Appeals held that the ALJ's opinion clearly evidenced that she had weighed the conflicting evidence from the treating physician and made a credibility decision which she is authorized to make. In contrast, neither the Court of Appeals nor the superior court can substitute itself as a fact-finding body. The Court of Appeals reasoned that given the uncontested nature of Waters' injury in the initial months, there was some evidence to support the ALJ's determination that the employer's defense was unreasonable per O.C.G.A. § 34-9-108(b) (1)'s mandate that fees may be awarded if proceedings have been defended even "in part without reasonable grounds."

EXCLUSIVE REMEDY

CHOICE OF LAWS

Smith v. Graham Construction Company, Inc., 2014 Ga. App. LEXIS 453 (July 1, 2014)

Court of Appeals, No: A14A0556

The Court of Appeals affirmed the trial court's grant of summary judgment to a general contractor, a foreign corporation registered to do business in Georgia, holding that since the injured plaintiff recovered workers' compensation benefits under the Georgia Workers' Compensation Act from his immediate employer, both the immediate employer and the general contractor, as a statutory employer, were immune from tort liability pursuant to the exclusive remedy provision set forth in O.C.G.A. § 34-9-11(a). Even though the employee, a Georgia resident, was injured in North Carolina, and under North Carolina workers' compensation law the general contractor would not have immunity from tort liability, the substantive law of Georgia governed because application of the North Carolina substantive law would offend the public policy embodied in the Georgia Workers' Compensation Act.

Allen Smith (a Georgia resident) was working for Edens Enterprises, LLC (a Georgia limited liability company) on a construction project located in North Carolina on which Graham Construction Company, Inc. (a foreign corporation principally located in North Carolina and registered to do business in Georgia) was the general contractor. Based on Smith's work related injury outside of Georgia, Edens paid workers' compensation benefits to Smith. See, O.C.G.A. § 34-9-242. Smith and his wife then sued Graham for damages resulting from his injury claiming that Graham negligently caused the injury. The trial court granted summary judgment in favor of Graham, and the Smiths appealed.

The Court of Appeals held that since Smith recovered benefits from his work-related injury, both his immediate employer, Edens, and Graham, as the statutory employer, were immune from tort liability pursuant to the exclusive remedy provision of the Workers' Compensation Act. The Court went on to hold that the trial court correctly applied the substantive law of Georgia even though the injury occurred in North Carolina because Georgia recognizes a public policy exception to the rule of lex loci delicti, and will not apply another state's substantive law if it contravenes the public policy of Georgia.

In this case, under the North Carolina Workers' Compensation Act, Graham would not be entitled to immunity from suit under the exclusivity provisions since Smith's immediate supervisor, Edens, had workers' compensation insurance and paid benefits. Under the Georgia Workers' Compensation Act, Graham qualified as a statutory employer immune from suit even though Edens had paid benefits. Thus, even though Smith was injured in North Carolina, the trial court was correct to apply Georgia substantive law since application of the North Carolina substantive law would offend the public policy embodied in the Georgia Workers' Compensation Act as set out in O.C.G.A. § 34-9-11(a). "This exclusivity feature of the [WCA] obtains even where the employee is injured outside of the state, and benefits for that injury are recoverable pursuant to O.C.G.A. § 34-9-242."

BENEFITS, SELECTION OF PHYSICIAN

LIGHT DUTY, REFUSAL

Brasher v. US Xpress Enterprises, Inc., 2014 Ga. App. LEXIS 463 (July 8, 2014)

Court of Appeals, No. A14A0597

The Court of Appeals held that (1) the Administrative Law Judge erred in, sua sponte, appointing a physician since an injured employee is authorized to select his own treating physician based on the employer's failure to provide timely medical care or post a panel of authorized physician, and (2) that the light duty job provided by employer was suitable to the employee, a long haul truck driver, and employee was not justified in refusing it based on the fact that his occupation required extended travel and periods away from home which contradicted the reasons employee provided for not taking the light duty job.

On March 18, 2012, Brasher, a long-haul truck driver, was injured when a steel crack used to connect his truck to a pre-loaded trailer spun off and struck him in the chest, back, neck and head. Brasher was taken by ambulance to a hospital in Rome, Georgia, and released to return to work with directions to see a doctor within 24 hours. After discharge, Brasher drove to the terminal in Atlanta where he complained of numbness in his arms and face. Employer's representatives advised that based on the emergency records which cleared him for work, she could not provide any more medical care and that the claim had been turned over to the insurer.

On March 21, 2012, Brasher was treated at an urgent care center in Atlanta and diagnosed with cervical strain and neuropathy. The doctor gave him prescriptions and placed him on work restrictions. After two more visits, he returned to is home in Alabama. The employer then offered Brasher a light duty job at their terminal in Tunnel Hill. Employer provided Brasher a bus ticket to Tunnel Hill. Upon reporting to work, he asked his employer for money to purchase food to take medications. This request was denied. After five hours, Brasher said he was not staying on the job and he was provided a bus ticket home after signing a form declining the job due to financial reasons. Brasher had not worked since April 9, 2012, although the light duty job remained available to him.

Brasher filed filed a notice of claim with the Board seeking temporary total disability benefits (TTD) from March 18, 2012 (the date of injury), authorization for medical treatment or attorney fees and penalties.

Before his hearing was held, Brasher made several more visits to the urgent care physician, who requested, but did not obtain approval for, an MRI, and a visit to a neurologist who diagnosed a host of spine problems and limited him to sedentary duty.

After the hearing, the ALJ concluded that Brasher was entitled to receive income benefits from March 21, 2012 through April 5, 2012; Brasher was not entitled to further benefits because the light duty job assigned to him was appropriate; US Express was obligated to provide Brasher with medical treatment for his injuries, including medical treatment by an orthopedist whom the ALF appointed as an authorized treating physician.

Brasher appealed to the Appellate Division which adopted the ALJ's award. Brasher appealed to superior court which conducted a hearing; however, the superior court did not issue an opinion within 20 days of the hearing and the Board's decision was affirmed by operation of law. See, O.C.G.A. § 34-9-105 (b), (d).

The Court of Appeals agreed with Brasher that when, as here, the employer did not follow the procedures for the selection of physicians as set forth in O.C.G.A. § 34-9-201(c), the employer is entitled to choose his own treating physician and employer US Express is responsible for the medical bills from these visits. The evidence of record established that US Express failed to post a panel of physicians as required by statute, and its representative failed to assist Brasher in any way.

The Court of Appeals affirmed the Board's finding that the light-duty job was suitable to his capacity and that Brasher was not justified in refusing it. O.C.G.A. § 34-2-240 provides a two prong test. The Board must ascertain if the employment offered by the employer and refused by the employee is suitable to the capacity of the employee. If the Board finds the employment is suitable, the employee is not entitled to compensation during the continuance of his refusal to work, unless such refusal is justified.

The Court of Appeals affirmed the Board's decision that the light duty job offered to Brasher was appropriate to his limitations since it did not involve any lifting, prolonged standing or walking, pushing or pulling, reaching above the shoulders, or squatting or kneeling. The Court of Appeals also affirmed the Board's decision that Brasher's refusal was unjustified. In order for the refusal to be justified, it must relate to the physical capacity of the employee to perform the job, the employee's ability or skill, or factors which would disrupt the employee's life. The Court of Appeals affirmed the Board's decision that Brasher's testimony that his refusal was justified was not credible. Brasher claimed he would "starve to death," however, his employer provided his a hotel with breakfast, and lunch for four days. Brasher also claimed the light duty job required relocation which disrupted his life; however, Brasher's occupation was long haul truck driver, hence he was accustomed to long periods away from home.

Brasher's final contentions regarding entitlement to a 15 percent penalty under O.C.G.A. § 34-9-221 (e) was moot because the employer already paid the full income benefits from March 21, 2013 through April 5, 2012, plus a 15 percent penalty. Lastly, Brasher was not deprived due process since Brasher had notice and a full hearing on his claims, and equal protection claim arguments regarding workers' compensation cases are matters to be addressed by the General Assembly.

PRACTICE NOTE: O.C.G.A. Title 34 Appx. Bd. Work. Comp. r. 240(c) was amended effective July 2013 to require an employee to "attempt the proffered job for eight cumulative hours or one scheduled work day, whichever is greater" to obtain reinstatement of total temporary disability benefits. Counsel should explain to an employee returning to work that he must make a good faith effort to try the job or his benefits will not be reinstated.

BENEFITS, RETROACTIVE APPLICATION

Ward v. Pre-Engineering Systems, 2014 Ga. App. LEXIS 2014 (July 15, 2014)

Court of Appeals of Georgia, No. A14A0388

The Court of Appeals reversed the trial court's decision that an injured employee was not entitled to nurse case management services on the ground that such benefit was not available at the time of his 1973 accident since allowing the award of such service would not render compensable an otherwise non-compensable injury, but would only expand the scope of treatment allowed in an ongoing workers' compensation case.

In 1973, Ward fell approximately 40 feet while working on a construction site and sustained serious injuries, including a traumatic brain injury which caused permanent cognitive impairment. Ward's employer, Pre-Engineering Systems, and its insurer paid for various benefits, including rehabilitative services from 1999-2009 when those services were suspended. In 2011, Ward filed a request to reinstate the benefits which was denied in an administrative order. Ward appealed, seeking a hearing before an Administrative Law Judge.

The ALJ noted that Ward was seeking services in the form of nurse case management, and the employer argued that there was no legal authority to award those services at the time of the 1973 injury. The ALJ rejected the employer's argument Employer appealed to the Appellate Division which affirmed the award the adopted the ALJ's findings. Employer then appealed to superior court which reversed the Board's decision.

The Court of Appeals granted Ward's application for discretionary review and held that the superior court erred in holding that Ward is not entitled to nurse case management benefits on the ground that such benefit was not available at the time of his 1973 injury. The Court relied on Interchange Village v. Clark, 185 Ga. App. 97, 99, 363 S.E.2d 350 (1987) which held that workers' compensation benefits may be "retroactively applied in those cases which involve compensable on-the-job injuries, since to do so would not render compensable an injury which would otherwise be non-compensable but would, at most, merely expand the scope of treatment required to be provided for an injury the compensability of which is not in question."

The Court went on to note that ongoing workers' compensation cases provide a unique context for retroactivity analysis since once an employer's obligation to pay for a work related injury is established, the case may continue for decades during which time the Board may be changing rules defining the respective scope of the employers' obligations and the employees' rights regarding medical care.

ARISING OUT OF EMPLOYMENT

Chambers v. Monroe County Board Commissioners, 2014 Ga. App. LEXIS 551 (July 16, 2014) Court of Appeals of Georgia, No. A14A0265

The Court of Appeals affirmed the judgment of the superior court and affirmed the judgment of the Appellate Board that an employee's knee injury incurred while getting up from a chair at work was not compensable because the employee offered no testimony to establish a causal connection between her employment and her injury, for example, that the chair or desk configuration caused her to lose her balance or strain to reach a standing position, that a work-related emergency such as a fire alarm caused her to jump out of the chair in a hurried manner, or that she came in contact with any object or hazard such as the desk, stairs, or a piece of equipment.

Pamela Chambers was employed as a firefighter/EMT. On the date of her injury, Ms. Chambers sat at a desk to complete paperwork, and then remained at the desk watching television. Her supervisor asked her to get up from the desk so he could use it, and when she rose from the chair, she felt and heard a "pop" in her knee. The ALJ found the injury compensable on the basis that Ms. Chambers was "required to be in the location where she was injured and was following her supervisor's orders." The Appellate Division vacated the award, finding that Ms. Chambers simply rose from a seated position.

The Court of Appeals of Georgia affirmed the Appellate Division, stating that since there was some evidence to support the finding that Chambers' injury had no causal connection to her employment, the Court was not able to disturb it. The Court of Appeals cited Chaparral Boats, Inc. v. Heath, 269 Ga. App. 339, 343, 606 S.E.2d 567 (2004) for the legal standard governing whether an injury "arises out of" employment: "The general rule still applies that the injury does not arise out of the employment where the causative danger is not 'peculiar to the work' in a way that causally connects the employment to the injury."

In reaching its decision that Ms. Chambers' injury was not compensable, the Court relied upon Ms. Chambers' hearing testimony that she did not get up from her chair in an unusual manner: "She offered no testimony to establish any causal connection between her employment and her injury; for example, that the chair or desk configuration caused her to lose her balance or strain to reach a standing position, that a work-related emergency such as a fire alarm caused her to jump out of the chair in a hurried manner, or that she came in contact with any object or hazard such as the desk, stairs, or a piece of equipment."

Furthermore, the Court of Appeals rejected the assertion of the dissent that they may review de novo the findings of the Board, based on the principle that where there is any competent evidence to sustain a finding by the Board, such finding is conclusive and binding on a reviewing court.

Presiding Judge Anne Barnes dissented on the basis that the conditions of employment need not be the sole cause of the employee's injury, but only a "contributing proximate cause" to the injury sustained. The dissent also argued that the correct standard of review is de novo since when, as in the instant case, the material facts are not in dispute, the question whether an injury arises out of and in the course of employment is a question of law, and erroneous applications of law to undisputed facts as well as decisions based on erroneous theories of law, are subject to the de novo standard of review. According to the dissent, the record demonstrated that Ms. Chambers injured her knee as she rose from a desk at the express direction of her supervisor, as she was required to do in accordance with her job duties.

PRACTICE NOTE: Prior to this case, the most recent decisions on whether an injury arose out of employment were Harris v. Peach County Board of Commissioners, 296 Ga. App. 225, 674 S.E.2d 36 (2009) (custodian who dislocated her knee picking up personal medication at the direction of her supervisor suffered a compensable injury) and St. Joseph's Hospital v. Ward, 300 Ga. App. 845, 686 S.E.2d 443 (2009)(nurse who injured her knee while turning to get a patient a glass of water did not suffer a compensable injury since she was not exposed to any risk unique to her employment and she did not come into contact with any object of hazard of employment.) The focus of the Chambers case on the employee's testimony points out that to prevail against the defense of idiopathic injury, counsel must establish that the circumstances of the work environment and/or the demands of the employment caused the employee's injury. The employee's testimony will be critical on this issue. Counsel should also examine any incident reports which can link the injury to the work environment.