Archive for April, 2012

Exercise of Discretion by Board In Favor of Employee is Supported By Court of Appeals

Monday, April 16th, 2012

The Court of Appeals had no patience for the procedural missteps of the employer in Ready Mix USA, Inc v. Ross, A11A2173 (March 14, 2012). The injured employee served discovery and requested a hearing looking for authorization for an MRI, TTD benefits, attorney’s fees and litigation expenses. No discovery was provided and neither the employer nor the insurer appeared at the hearing. The ALJ granted all the relief requested, and the employer/insurer moved to vacate the hearing which was denied. The Appellate Division adopted the ALJ’s award and was affirmed by operation of law when the Superior Court failed to enter a timely decision. The Court of Appeals granted the application for discretionary appeal only to find no merit in the arguments of the employer/insurer.

1.              The employer/insurer claimed that they were not properly served with the hearing notice. The Court of Appeals pointed out that record contained a hearing notice with the names and addresses of the employee, employer, insurer, and time and place of the hearing. In addition, the record contained a hearing statement by the employee’s attorney that the addresses were correct, that notices were mailed to all parties, and that the court had also emailed the notice to the insurer. This was “some competent evidence” to support the Board’s finding that there was adequate notice, construing the “evidence that was properly before the ALJ in the light most favorable to [the] prevailing party.” The court also reiterated that “notice to either the employer or insurer serves as notice to the other.”

2.              The employer/insurer argued that there was no properly admitted evidence showing that the employee was totally disabled. Citing Rule 102 (E) (3) (b), they argued that the ALJ improperly admitted and considered the employee’s medical records that were not exchanged before the hearing. The Court of Appeals held that the rule “does not mandate exclusion of evidence that was not exchanged [but] gave the ALJ discretion to determine whether the circumstances of this case warranted the exclusion.” The employer/insurer also failed to convince the court that a work status report must be signed by an authorized treating physician since “an authorized treating physician must provide the report under which benefits are to be initiated” under Board Rule 221. “This is simply not the standard of proof imposed upon an employee seeking TTD under OCGA §34-9-261,” said the Court of Appeals. “An employee [is required] to show by a preponderance of credible evidence that he has experienced a loss of earning capacity due to the injury and not due to the employee’s unwillingness to work or to economic conditions of unemployment.” In addition, the work status report “clearly originated from the offices” of the ATP and the record contained the employee’s testimony that the ATP took him out of work completely and he was unable work pending further treatment. The court “is bound by the ‘any evidence’ standard of review” and the prevailing party was entitled to “every reasonable inference and presumption of validity.”

3.              The employer/insurer argued that the Board erred in failing to allow them to amend or withdraw admissions that resulted from their failure to answer the employee’s discovery requests. This included an admission that the employee suffered a disability as a result of the work accident and injury. OCGA §9-11-36 “expressly authorizes the court to permit withdrawal or amendment of the admission and vests broad discretion in the trial court,” said the Court of Appeals, which also noted that the challenged admission “was merely cumulative of evidence … sufficient to support the ALJ’s finding” of total disability.