About Victor Alexander
The law firm of Victor Alexander, Jr. P.C., has been successfully representing Georgians suffering a loss of quality of life due to an accident or injury for more than three decades. Let us help you obtain the medical and income benefits you need for your Workers’ Compensation or Personal Injury claim.
Archive for the ‘Case Results’ Category
Exercise of Discretion by Board In Favor of Employee is Supported By Court of Appeals
Monday, April 16th, 2012The 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.
Atlanta Workers Compensation – Attorney Ex Parte Communications with Doctors
Monday, January 30th, 2012Can benefits be withheld from a worker’s compensation claimant who refuses to let her employer’s attorneys talk to her physician out of the presence of herself or her attorney? The Court of Appeals says no in McRae v. Arby’s Restaurant Group, Inc., A11A1021, (Ct. App. 2011). The claimant was injured when she mistook a cup of lye for her coffee at work. The Superior Court and Appellate Division had affirmed the ALJ’s order which removed her claim for benefits from the hearing calendar until she provided an authorization permitting the ex parte contact. The Court of Appeals held that the Worker’s Compensation Act does not compel an employee to authorize her treating physician to speak to her employer’s attorney ex parte in exchange for receiving benefits. The court also said that an employee who files a worker’s compensation claim does not give up her right to medical privacy with respect to matters unrelated to her claim. “Giving the employer’s counsel unbridled access to ex parte communications with an employee’s treating physicians would create numerous potential dangers [including] the potential to influence the physician’s testimony, to probe into irrelevant but highly prejudicial matters, and the disclosure of information never disclosed to the patient,” said the court, citing Baker v. Wellstar Health Sys, 288 Ga. 336 (2010).
The Court of Appeals also expressly disagreed with the Superior Court’s view that the medical privacy constraints of HIPAA are not applicable in worker’s compensation proceedings. HIPAA permits disclosure of information in accordance with worker’s compensation laws, but in Georgia, a claimant only waives her right to privacy with respect to related communications she has had with any physician. She must disclose all information and records related to the treatment for the injury at issue and related medical history, but the court refused to construe “information” to include future ex parte communications. To do so would lead to “absurd, impractical, or contradictory results.” However, three justices dissented, and the Supreme Court is currently considering a cert petition. It is likely that a further appeal would focus on the definition of “information” in both HIPAA and the Worker’s Compensation Act
Court of Appeals case – Southern Concrete/Watkins – Home Modifications under Georgia Workers Compensation
Friday, April 15th, 2011Friends and enemies, the Georgia Court of Appeals has decided a new workers’ compensation case which is one of first impression. In Southern Concrete/Watkins Associated Indus., et al. v. Spires, ______ Ga. App. ______, Case No. A10A1981 and decided March 22, 2011, the Court undertook the decision on housing issues for catastrophically injured employees. In this case a paraplegic who was injured in a 1988 injury was in need of wheelchair-accessible housing after the house he owned was deemed uninhabitable. Mr. Spires owned some property in South Georgia and wanted the wheelchair-accessible home built on his property. The workers’ comp insurance company wanted to build the house on another piece of property and maintain title to the house giving Mr. Spires a life estate so that he could live in the house as long as he was alive. The State Board of Workers’ Compensation, Full Board decided that the insurance company should be allowed to build the house on their property and maintain title. The case went on to the superior court where the superior court judge ruled that the house could be built on Mr. Spires’ own property and he could be given feesimple title. Onward to the Court of Appeals and the higher court reversed the superior court and ruled that the insurance company should be allowed to maintain title in the house and take possession after the death of the injured employee. There are not a lot of cases in the State of Georgia regarding rehabilitation services and housing requirements. The Board is required, and in its discretion to furnish employee with rehab services which it deems necessary and practical. It looks like the State Board took the practical route leaving title to the house to the insurance company. Very frankly Georgia needs more case law on the issues of home modifications, bathroom modifications and modifications of bathtubs and kitchens so that a clear understanding can be rendered in the given situation.
Thanks to all who read my blog.
NEW WORKERS’ COMPENSATION OPINION
Tuesday, November 2nd, 2010On October 19, 2010, the Georgia Court of Appeals has issued a new case opinion regarding workers’ compensation.
In the case of Hughston Orthopedic Hospital v. Wilson Hospital et al., Case No. A10A1098 (decided October 19, 2010) the Court upheld the opinion of the Administrative Law Judge who simply did not believe the opinion of an injured employee who was a clinical technician for Hughston Orthopedic Hospital and claimed that she became ill due to the fumes from wallpaper glue and primer.
The Administrative Law Judge was the one who had observed Ms. Wilson’s demeanor and found it to be bizarre with sporadic patterns that seemed to be feigned. In conclusion, the Judge gave the opinion that Ms. Wilson had failed to prove by a preponderance of evidence that her symptoms were related to the chemical exposure at work.
Naturally and legally, the matter was appealed to the Superior Court and then onto the Court of Appeals who wrote the decision reviewed here.
The Court repeatedly recited that for an accident to be compensable under workers’ compensation, it must arise out of and in the course of employment. It explained that the injury arising out of one’s employment whether it is a cause or connection between the employment and the injury that the claimant carries the burden of establishing the causation. And it is routinely the law that factual questions concerning causation are properly left to the State Board of Workers” Compensation to determine.
It has always been the province of the State Board to determine the weight and credit of the evidence given and the testimony of witnesses. The Administrative Law Judge can accept the opinions of medical experts as advisory only and those opinions may be accepted or rejected by the State Board.
Basically, if there is some evidence, which is commonly known as the Any Evidence Rule, the decision by the Administrative Law Judge and the Full Board will be, and should be, upheld by the Court of Appeals.
This is the basic law under George Workers’ Compensation. The Administrative Law Judge and the Full Board are the ones who evaluate the case from an evidenciary point of view. The Appellate Courts including the Superior Court, Court of Appeals and Supreme Court cannot weigh the testimony of witnesses.
NASTY DANGEROUS ROADS – WATER RUNOFF
Wednesday, October 27th, 2010The legal publication for the City of Atlanta Courts – Fulton County Daily Report has indicated that the Georgia Department of Transportation has settled two cases regarding death and injuries resulting from the same stretch of roadway in Cherokee County. Apparently the DOT resurfaced a portion of highway that’s on a hill with a curve. The roadway wore down and polished pebbles in the road tar were left. When the roadway became wet, cars would hydroplane out of control. Thus far two cases have been settled on the stretch of road which could have been repaired for around $200,000.00. In one case; the most recent one, the settlement was for $1 million to a 21‑year‑old mother who was killed on this roadway. Another incident resulted in the settlement of a case when a physician hydroplaned out of control into the path of another car injuring a pregnant woman who had premature emergency deliver resulting in disabilities to the surviving child.
There was another incident in 2007 when a 9‑year‑old child was killed when another SUV hydroplaned.
The issue of roadway and dangerous highways surfaced again in a new opinion from the Georgia Court of Appeals. In Barnard v. Turner County, Ga. App. (Case No. A10A1533) the court reversed the Superior Courts dismissal of the case on summary judgment and found that the county could be held responsible based on its ministerial duties to inspect and repair the road. This is another case of water running over the roadway causing danger to drivers. In this situation Stacy Barnard was killed in September 2006 when she was ejected from a vehicle as it hydroplaned on this dangerous stretch of highway. This was caused by the failure of the county to keep the ditches on each side of the road clear for runoff. The case was aggravated by the fact that a neighbor in the area had reported the condition of the road to a county commissioner prior to the incident. Also, a county road employee reported the problem to his boss just an hour before Ms. Barnard died.
We will keep you posted on other incidents regarding dangerous roadways. Remember to report any dangerous roadways from water exposure or others to the local officials and to the state government. Be sure to keep a record of who you reported to and when. This will put them on notice of what they need to do to keep our Georgia roads safe.
