Archive for July, 2011

Trial Notebook: Evidence – Workers Compensation

Friday, July 29th, 2011

Admissions

Where a claimant makes certain admissions to formal requests for admissions and then states otherwise during the testimony, an Administrative Law Judge can’t disbelieve the admissions and accept the testimony.  See Piedmont Aviation Inc. v. Washington, 181 Ga. App. 730, 353 S.E.2d 847 (1987).

Affidavits

Affidavits may be considered even if conclusions are intermingled with facts.  Willig v. Shelnutt, 224 Ga. App. 530, 480 S.E.2d 924 (1997).  Self-serving does not equate with conclusionary when the statements contained in an affidavit are supported… by substantiating facts and circumstances.  See, Keene v. Herstam, 225 Ga. App. 115, 483 S.E.2d 235 (1997).

Any Evidence Rule

Gasses v. Professional Plumbing Co., 204 Ga. App. 69, 418 S.E.2d 424 (1992).

It is well established that a party to an action is a competent witness.  The fact that a witness is a party goes to the weight and credibility of his testimony.  Where the claimant swears to his injury and disability, this testimony’s weight and credibility is to be determined solely by the ALJ and the Board.  “The Superior Court. When sitting as an appellate body, is bound by the ‘any evidence’ standard of review and is not authorized to substitute its judgment as to weight and credibility of the witnesses.  The ALJ and Board may choose to believe the testimony of the claimant as opposed to the testimony of an expert witness.  The testimony of the claimant provided the ‘any evidence’ in support of the ALJ and Board’s findings, and the Superior Court erred in substituting its judgment for that of the Board in weighing the credibility of the claimant’s testimony, and finding no competent evidence in support of the Board’s award.” See Maddox v. Elbert County Chamber of Commerce, 191 Ga. App. 478, 382 S.E.2d 150 (1989).

The Board is the trier of fact and law and the appellate court is bound by the findings that there is “any evidence” to support that finding.  Diers v. House of Hines, Inc., 168 Ga. App. 282, 308 S.E.2d 611 (1983).

“The findings and conclusions of the full board supersede those of the administrative law judge and required under the ‘any evidence rule’ to uphold those findings and conclusion.  It is the law in this state that if there is any evidence to support a finding the Workers’ Compensation Board of the Superior Court may not reverse the award unless errors of law are committed.  Moreover, in determining whether evidence in the case meets that any evidence rule, the evidence will be construed in the light most favorable to the party prevailing before the board and every presumption in favor of the board’s award is indulged.  See Poulnot v. Dundee Mills Corp., 173 Ga. App. 799, 328 S.E.2d 228 (1985).

Finding of fact by the Board if supported by any evidence is conclusive and binding upon the Superior Court.  Banks v. Royal Globe Insurance, Co., 160 Ga. App. 18, 286 S.E.2d 309 (1981).

Since there was some evidence to authorize the award of attorney fees for failure to comply with O.C.G.A. § 34-9-221(d) without reasonable grounds it was error to reverse the full board.  Moon v. Cook & Co., 170 Ga. App. 569, 317 S.E.2d 642 (1984).

Findings of fact by the Board if supported by any evidence is conclusive and binding upon the superior court.  Banks v. Royal Globe Insurance Co., 160 Ga. App. 18, 286 S.E.2d 309 (1981).   Since there was some evidence to authorize the imposition of attorneys’ fees for failure to comply with 34-9-221(d) without reasonable grounds, it was err to reverse the Full Board.  Moon v. Cook & Co., 170 Ga. App. 569, 317 S.E.2d 642 (1984).

The Administrative Law Judge relied on the opinion of the family physician for a claimant seeking catastrophic designation of his case.  The employer and their insurer sent claimant to Dr. Lee Kelley, Dr. Thomas Dopson and Dr. Ezequiel Cassinelli.  All three IME doctors concluded that claimant had no residual problems because of his back.  The case was appealed to the full Board of the State Board of Workers’ Compensation and the full Board reversed indicating that the preponderance of evidence supported the three IME doctors that there was no problem and the case did not meet catastrophic designation.  In 1994 the legislature amended O.C.G.A. § 34‑9‑103(a) and stated that the full Board or appellate division reviews the decisions of the ALJ’s findings of fact and they shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the record.  The appellate division can no longer hear additional evidence but you must make a decision on the record established in the trial division if the appellate division concludes that the ALJ Award does not meet the statutory requirement of preponderance of admissible evidence then the appellate division may substitute its own alternative findings for those of the ALJ and enter an Award accordingly.  See Bonus Stores, Inc. et al. v. Hensley, 2011 WL 1238420, (Case No. A11A0307 decided April 5, 2011).

Claimant as a Witness for Self

In a workers’ compensation case, a Superior Court judge held that there was no competent and credible evidence on record to support the finding of the Board and ALJ that claimant sustained an injury.  The Superior Court judge went on to hold that because claimant was a party in interest her credibility is suspect at best, and therefore, without any confirmatory evidence, is not competent to support the verdict.  The Superior Court judge cited Brown Transport v. Parker, 129 Ga. App. 737, 201 S.E.2d 17 (1983), as supporting.  In reversing the Superior Court judge, the Court of Appeals held that a party to an action is a competent witness.  See O.C.G.A. § 24-9-1(a).  The fact that a witness is a party goes to the weight and credibility of his testimony.  See O.C.G.A. § 24-4-4.

Where the claimant swears to his injury and disability, this testimony’s weight and credibility is to be determined solely by the ALJ and the Board, and his testimony alone is sufficient to establish those facts.  See Fulton Dekalb Hospital Authority v. Hadley, 174 Ga. App. 503, 330 S.E.2d 432 (1985); and Southern Railroad Company v. Tankersley, 3 Ga. App. 548, 60 S.E. 297 (1908).  The Court of Appeals went on to hold that the findings of the Board are conclusive and binding and neither the Superior Court not this Court has any authority to substitute itself as a fact finding body in lieu of the Board.  See East Texas Motor Freight Lines v. Jacobs, 163 Ga. App. 727, 296 S.E.2d 80 (1982); and Argonaut Insurance Co. v. Cline, 142 Ga. App. 603, 236 S.E.2d 876 (1977).

The ALJ and the Board may choose to believe the testimony of the claimant as opposed to the testimony of an expert.  See Fulton Dekalb Hospital Authority v. Hadley, 174 Ga. App. 503, 330 S.E.2d 432 (1985); and Terry v. Liberty Mutual Insurance Company, 152 Ga. App. 583, 263 S.E.2d 475 (1979).  This may all be found in Maddox v. Elbert County Chamber of Commerce, A89A0112 (1989).

Construction of the Worker’s Compensation Act

“A liberal construction must be given to effectuate the humane purposes for which the Workers’ Compensation Act was enacted.”  Traveler’s Ins. Co. v. Southern Electric, 209 Ga. App. 718, 434 S.E.2d 507 (1993).

Employee Status/Independent Contractor

The relationship of the parties was of employer/employee because the law resolves doubt in favor of employee status. Unigard Mutual Insurance Co. v. Hornsby, 134 Ga. App. 157, 213 S.E.2d 538 (1975).

Employee’s Testimony About Ability to Work

A person may testify about his injuries and suffering and may be believed over a whole college of physicians and surgeons. Southern Railway Co., v. Tankersley, 3 Ga. App. 548, 60 S.E.2d 297 (1908); Southern Railway Co. v. Petway, 7 Ga. App. 659, 67 S.E. 886 (1910); The City of Atlanta v. Champe, 66 Ga. 659 (1881), Great Atlantic and Pacific Tea Co. v. Dupee, 71 Ga. App. 148, 30 S.E.2d 365 (1944); Steven W. Brown Radiology Associates v. Gowers, 157 Ga. App. 770, 278 S.E.2d 653 (1981). Claimant is competent to testify concerning what caused his injuries and to testify concerning those injuries and their characteristics and the finder of fact may infer from that evidence the effect of his injuries. Barker v. Crum Trucking Co., Inc., 137 Ga. App. 435, 224 S.E.2d 53 (1976); Everett v. Holmes, 126 Ga. App. 208, 190 S.E.2d 568 (1972); Hutcheson v. Daniels, 224 Ga. App. 560, 561, 481 S.E.2d 567 (1997).
It is not necessary to submit medical testimony or evidence as to the cause or onset of symptoms and the finder of fact may conclude causation, symptoms and the effect of the injuries from common knowledge. Barker v. Crum Trucking Co., Inc., 137 Ga. App. 435, 224 S.E.2d 53 (1976); Everett v. Holmes, 126 Ga. App. 208, 190 S.E.2d 568 (1972); Hutcheson v. Daniels, 224 Ga. App. 560, 561, 481 S.E.2d 567 (1997). Jordan v. Smoot, 191 Ga. App. 74, 380 S.E.2d 714 (1989); Madden v. Solomon, 196 Ga. App. 512, 396 S.E.2d 245 (1990).

Establishing Causal Connection in Worker’s Compensation

There are three forms of competent evidence:

1.    Medical opinion;

2.    Lay observation and opinion; and

3.    The natural inference through human experience.

Hiers and Potter, Georgia Workers’ Compensation Law and Practice, § 6-2, citing Guye v. Home Indemnity Company, 241 Ga. 213, 244 S.E.2d 864 (1978) and Carter v. Kansas City Fire, 138 Ga. App. 601, 226 S.E.2d 755 (1976).  Reynolds Construction Co. v. Reynolds, 218 Ga. App. 23, 459 S.E.2d 612 (1995).

Factual Questions for the ALJ

Factual questions concerning causation are properly left to the state Board to determine rather than to the superior court or the appellate courts and the Board’s findings must be affirmed if there is any evidence to support them.  City of Atlanta v. Roach, 297 Ga. App. 408, 677 S.E.2d 426 (2009).  CYKK (USA), Inc., 287 Ga. App. 537, 652 S.E.2d 187 (2007) all cited in Hughston Orthopedic Hospital et al. v Wilson, 306 Ga. App. 893, 703 S.E.2d 17 (2010).

In this case the Administrative Law Judge simply did not believe the witness and found that she had psychiatric problems as opposed to being exposed to glue while at work.  Even though there was a medical physician, Dr. Larry Empting, who believed that it was caused by chemical exposure and the Board and Administrative Law Judge simply did not have to believe the doctor which he did not.  “But the trier of fact clearly is entitled to observe the demeanor and conduct of the witness while testifying and take these factors into account in ensuring the credibility of the witness.”  See McIlwain v. State, 264 Ga. 382, 445 S.E.2d 261 (1994).

Also, the fact finder may consider medical opinion testimony in the context of its own experience and completely disregard the expert opinion.  See Dept. of Revenue v Graham, 102 Ga. App. 756, 117 S.E.2d 902 (1960).  (“The weight and credit to be given to expert testimony is a question exclusively for decision by the fact-finding tribunal.”)

Independent Contractor v. Employee

Judge Jacoy Claimant-Sewell worked doing satellite installation work for New South Contracting.  He did not discuss employment status and did not sign a contract establishing any particular status.  He did fill out paperwork identifying him as an independent subcontractor.  Form W-9 may indicate independent contractor but to an untrained eye, such as Mr. Sewell, it had no impact.  The judge points out that a very small font size was used to establish independent contractor or subcontractor.  Judge Jacoy determined that the company retained the right to control the manner and method of work and retained the right to inspect jobs by sending quality control inspectors to the completed jobs for the purpose of verifying that the installation has been performed.

“Although there are some indicia of independent contractor status, I find that Mr. Sewell has shown by a preponderance of the evidence that he was an employee of New South Contracting.  The few factors which could indicate status as an independent contractor are not sufficient to negate the other factors which indicate status as an employee.  Echo Enterprises, Inc. v. Aspinwall, 194 Ga. App. 444, 390 S.E.2d 867 (1990).  Because the company has the right to direct the time, manner, methods, and means of the work, the relationship between it and Mr. Sewell was of an employer and employee.  Burgett v. Thamer Construction, Inc., 165 Ga. App. 404, 300 S.E.2d 211 (1983).  In addition, I conclude that the relationship of these parties was of employer/employee because the law resolves doubt in favor of employee status.  Unigard Mutual Insurance Co. v. Hornsby, 134 Ga. App. 157, 213 S.E.2d 538 (1975).”

Judicial Notice Code of Federal Regulations (CFR)

The Code of Federal Regulations published in the Federal Register and codified at (CFR), et seq. are constructive notice to the parties in this action.  See 44 U.S.C.A. § 1507.  Such regulations are judicially cognizable by the courts of this state.  See Sims v. Southern Bell Telephone and Telegraph Co., 111 Ga. App. 363, (141 S.E.2d 788 (1965).  All cited in Klemme Cattle Company, Inc. v. Westwind Cattle Company, 156 Ga. App. 353, 274 S.E.2d 738 (1980).

The Code of Federal Regulations 26 CFR, Chapter 3, Paragraph 404, Subparagraph 3, App. 1 is admissible and judicial notice can be taken.  See Klemme Cattle Company, Inc. v. Westwind Cattle Company, 156 Ga. App. 353, 274 S.E.2d 738 (1980).

Medical Condition Opinion of Claimant

A person may testify about his injuries and suffering and may be believed over a whole college of physicians and surgeons.  Southern Railway Co., v. Tankersley, 3 Ga. App. 548, 60 S.E.2d 297 (1908); Southern Railway Co. v. Petway, 7 Ga. App. 659, 67 S.E.2d 886 (1910); The City of Atlanta v. Champe, 66 Ga. 659, Great Atlantic and Pacific Tea Co. v. Dupee, 71 Ga. App. 148, 30 S.E.2d 365 (1944); Steven W. Brown Radiology Associates v. Gowers, 157 Ga. App. 770, 278 S.E.2d 653 (1981).
Claimant is competent to testify concerning what caused his injuries and to testify concerning those injuries and their characteristics and the finder of fact may infer from that evidence the effect of his injuries. Barker v. Crum Trucking Co., Inc., 137 Ga. App. 435, 224 S.E.2d 53 (1976); Everett v. Holmes, 126 Ga. App. 208, 190 S.E.2d 568 (1972); Hutcheson v. Daniels, 224 Ga. App. 560, 561, 481 S.E.2d 567 (1997).

It is not necessary to submit medical testimony or evidence as to the cause or onset of symptoms and the finder of fact may conclude causation, symptoms and the effect of the injuries from common knowledge.  Barker v. Crum Trucking Co., Inc., 137 Ga. App. 435, 224 S.E.2d 53 (1976); Everett v. Holmes, 126 Ga. App. 208, 190 S.E.2d 568 (1972); Hutcheson v. Daniels, 224 Ga. App. 560, 561, 481 S.E.2d 567 (1997). Jordan v. Smoot, 191 Ga. App. 74, 380 S.E.2d 714 (1989); Madden v. Solomon, 196 Ga. App. 512, 396 S.E.2d 245 (1990).

Medical Evidence: Admissibility of Ph.D. Laboratory Directors

In workers’ comp case contention is that Administrative Law Judge erred in admitting the results of a paternity test because the report did not meet the requirements O.C.G.A. § 34-9-102(e)(2).  The contention is that the report was not signed by a treating physician and that no physician or other medical provider testified regarding the issue of paternity.

In order to satisfy O.C.G.A. § 34-9-102(e)(2), a medical report must be signed by a “duly qualified medical practitioner.”  The persons listed include a physician and three laboratory directors.

An individual holding a Ph.D. is not a “medical practitioner” as defined O.C.G.A. § 43-34-20(3).  Therefore, because the evidence does not show that a physician signed a report, the ALJ erred in admitting it under O.C.G.A. § 34-9-102(e)(2).  However, such error was harmless given the independent evidence supporting the finding that the young girl was the biological daughter of the employee.

Medical Evidence: Psychiatrist Not a Physician

See Roberts v. Forte Hotels, Inc., 227 Ga. App. 471, 489 S.E.2d 540 (1997).

Language in the code section (O.C.G.A. § 34, O.C.G.A. § 9-11-35) has very clear language requiring the examination be performed by a physician.”  Since a psychologist is not a physician, the trial court had no authority to order Roberts to submit to an examination by a psychologist.

Medical Opinions – Weight and Credit to be given

In workers’ compensation claims although all medical opinions must be considered, acceptance of an opinion is not required.  See Liberty Mutual Ins. Co. v. Nobles, 147 Ga. App. 81, 248 S.E.2d 160 (1978).  Further, the weight and credit to be given to expert testimony is a question exclusively for decision by the fact-finder, making the opinions of the expert witness advisory and binding the fact-finder only to the extent to which credence is given to the opinion.  See Department of Revenue v. Graham, 102 Ga. App. 756, 117 S.E.2d 902 (1960) Thus, the Board may accept the testimony of one expert over the testimony of another.  Further, the rejection of an expert medical opinion is within the authority of the Board.  As the Board is not absolutely bound to accept such expert opinions, even when uncontroverted.  See Fulton County Board of Education v. Taylor, 262 Ga. App. 512, 586 S.E.2d 51 (2003). Therefore, the Board is free to accept the testimony of one doctor over that of another or reject an expert medical opinion outright.

Opinions of medical experts are advisory only and may be accepted or rejected by the Board.  Reliance Insurance Co. v. Cushing, 132 Ga. App. 179, 207 S.E.2d 664 (1974); Caraway v. ESB, Inc., 172 Ga. App. 349, 323 S.E.2d 197 (1984).

Newly Discovered Evidence

O.C.G.A. § 34-9-221(h) provides that, where compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless a Notice to Controvert is filed with the Board within sixty days of the due date of first payment of compensation.

Failure to exercise ordinary diligence in discovering evidence that will be used to controvert a claim will bar the argument of “newly discovered evidence.”  See Georgia Power Company v. Pinson, 167 Ga. App. 90, 305 S.E. 2d 887 (1983).

In deciding whether to remand a case to the ALJ to receive newly discovered evidence, the Board is directed to apply the law of Georgia regarding the nature and character of newly discovered evidence required for the granting of a new trial.  Rule 103-D of the Rules of the State Board of Workers’ Compensation. See also, Hartford Accident and Indemnity Company v. Snyder, 126 Ga. App. 31, 189 S.E.2d 919 (1982).

Evidence is not duly discovered if it was known to a party at the time of the original hearing.  For reference, see Franchise Enterprises, Inc. v. Sullivan, 190 Ga. App. 767, 380 S.E.2d 68 (1989).

Testimony of Employee Ability to Perform Work and Cause of Injury

“Testimony of employee can establish inability to perform job duties.”  See Young v. Columbus Consolidated Govt., 263 Ga. 172, 430 S.E.2d 7 (1993).

The full Board of the State Board of Workers’ Compensation (Appellate Division) is not absolutely bound to accept an expert’s medical opinion, even when uncontroverted.  City of Marietta v. Kirby, 210 Ga. App. 566, 436 S.E.2d 762 (1993); Atlanta Hilton and Towers v. Gaither, 210 Ga. App. 343, 436 S.E.2d 71 (1993).

A person may testify about his injuries and suffering and may be believed over a whole college of physicians and surgeons.  Southern Railway Co., v. Tankersley, 3 Ga. App. 548, 60 S.E.2d 297 (1908); Southern Railway Co. v. Petway, 7 Ga. App. 659, 67 S.E.2d 886 (1910); The City of Atlanta v. Champe, 66 Ga. 659, Great Atlantic and Pacific Tea Co. v. Dupee, 71 Ga. App. 148, 30 S.E.2d 365 (1944); Steven W. Brown Radiology Associates v. Gowers, 157 Ga. App. 770, 278 S.E.2d 653 (1981).

Claimant is competent to testify concerning what caused his injuries and to testify concerning those injuries and their characteristics and the finder of fact may infer from that evidence the effect of his injuries. Barker v. Crum Trucking Co., Inc., 137 Ga. App. 435, 224 S.E.2d 53 (1976); Everett v. Holmes, 126 Ga. App. 208, 190 S.E.2d 568 (1972); Hutcheson v. Daniels, 224 Ga. App. 560, 561, 481 S.E.2d 567 (1997).

It is not necessary to submit medical testimony or evidence as to the cause or onset of symptoms and the finder of fact may conclude causation, symptoms and the effect of the injuries from common knowledge.  Barker v. Crum Trucking Co., Inc., 137 Ga. App. 435, 224 S.E.2d 53 (1976); Everett v. Holmes, 126 Ga. App. 208, 190 S.E.2d 568 (1972); Hutcheson v. Daniels, 224 Ga. App. 560, 561, 481 S.E.2d 567 (1997). Jordan v. Smoot, 191 Ga. App. 74, 380 S.E.2d 714 (1989); Madden v. Solomon, 196 Ga. App. 512, 396 S.E.2d 245 (1990).

WC-1

First Report of Injury—not admissible as evidence.  O.C.G.A. § 34-9-61 (b).  Hardee’s v. Bailey, 180 Ga. App. 332, 349 S.E.2d 211 (1986).

Weight and Credit

Weight and credit to be given:  “It is up to the Board to determine the weight and credit to be given testimony of witnesses and to resolve the conflicts in the evidence.  Raley v. Lanco Paint and Drywall, 190 Ga. App. 462, 379 S.E.2d 196 (1989); Moss v. Brunswick Mfg. Co., Inc., 160 Ga. App. 564, 287 S.E.2d 612 (1981).

There is no requirement that the administrative law judge make specific reference to all evidence presented at the hearing.  Union Carbide Corp. v. Coffman, 158 Ga. App. 360, 280 S.E.2d 140 (1981); Rothell v. Waffle House, Inc., 171 Ga. App. 199, 319 S.E.2d 73 (1984).

“Upon de novo consideration of all evidence, the Board makes the findings of the administrative law judge its findings and conclusions.” Cooper v. Simmons Co., 154 Ga. App. 260, 267 S.E.2d 866 (1980). This case finds merit less that the board failed to consider all of the evidence.

Questions as to creditability and preponderance address themselves to the trier of fact.  On appeal the appellate tribunal does not determine creditability of witnesses on the preponderance of the evidence.  Hodges v. William L. Sloan, Inc., 173 Ga. App. 358, 326 S.E.2d 556 (1985).