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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 ‘Worker’s Compensation’ Category
81 day Rule: When is Evidence “Newly Discovered”?
Thursday, May 10th, 2012An employer argued that evidence was “newly discovered” because it was not available when benefits were voluntarily commenced within 21 days of knowledge of the injury. Citing Georgia Power v. Pinson, 167 Ga. App. 90 (1983), the employer contended that because toxicology results could not possibly have been procured before the employer commenced benefits before the 21st day under O.C.G.A.§34-9-221(h), the evidence falls under the definition of ‘newly discovered evidence.’ In Pinson, the court held that in order to qualify as newly discovered evidence, ‘[t]he evidence sought to be introduced must not be evidence of a cumulative or merely impeaching character, but must be of a character as likely would have produced a different result had the evidence been procurable at first hearing. It must be shown that the evidence was not known to the party at the time of the original hearing, and that, by reasonable diligence, this new evidence could not have been secured.’ [Cit.]” Id. at 91. In lieu of a hearing, “newly discovered evidence” cannot have been available before benefits were voluntarily paid, said the employer, citing Anderson v. Araguel, Sanders, Carter & Swain et al., 163 Ga. App. 610 (1982), and it did not matter that the evidence was, in fact, discovered before the expiration of the 60 day period of O.C.G.A. §34-9- 221(h).
But this interpretation of the 81 day rule under O.C.G.A. §34-9-221(h) would turn the statute on its head and render it meaningless. Under the employer’s view, the only evidence that would not constitute ‘newly discovered evidence’ would be evidence that was discoverable with diligence prior to the commencement of voluntary payments. Therefore, according to the employer, it had 60 days to act on information that was discoverable through diligence in the first 21 days after the injury, and it had forever to act on information that was only available from Day 22 forward. But O.C.G.A. §34-9-221(h) specifically “addresses situations in which the employer has begun paying compensation but subsequently determines that grounds exist for contesting payment.” Southeastern Aluminum Recycling, Inc. v. Rayburn, 172 Ga. App. 648, 649 (1984). “This provision affords an employer another opportunity to controvert a claim if the employer changes its mind about controverting a claim.” Cartersville Ready Mix Co. v. Hamby, 224 Ga. App. 116, 117 (1996). “The language of OCGA § 34-9-221(h) is clear.” Id. at 119. Overruling a case in which the employer was permitted to controvert although it “missed the 60-day deadline” but “had access to the necessary evidence prior to the deadline,” the court in Carpet Transport, Inc. v. Pittman, 187 Ga. App. 463 (1988) noted, “those employers/insurers who have not filed a timely initial notice to controvert pursuant to OCGA § 34-9-221(d), but who have initiated voluntary payment of compensation are given by subsection (h) an additional 60-day period within which they can controvert, on any ground whatsoever, the employee’s right to those benefits.” 187 Ga. App. at 467 .
The purpose of O.C.G.A. §34-9-221(h) is to limit the ability of the employer/insurer to controvert a claim, not to extend it ad infinitum, a principle that was recently reaffirmed by the Court of Appeals. “The statute provides a mechanism for a relatively speedy resolution of the employer’s unilateral decision to withhold benefits from its employee. If the employer does not comply with the statutory requirements for terminating benefits, then it must bear the consequences. This court’s decisions in Hamby and Rayburn are decades old, and if the legislature disagreed with them it had many opportunities to amend the Workers’ Compensation Act accordingly.” Crossmark v. Strickland, 310 Ga. App. 303, 307 (2011). “If an employer begins paying benefits … it may still controvert the claim and has a longer period of time within which to do so, specifically within 60 days of the date the first payment of benefits was due. Id. at 306. “Diligent employers/insurers are fully protected under the interpretation of OCGA § 34-9-221(h) as a 60-day statute of limitation.” Columbus Intermediate Care Home, Inc. et al. v. Johnston et al., 196 Ga. App. 516 (1990).
Employee Must Have Notice Of Issue And Opportunity To Be Heard Or Give Implied Consent Before ALJ Can Rule
Thursday, May 10th, 2012Employee in Harris v. Eastman Youth Development Center ( A12A0580, April 16, 2012) injured her knee and developed low back pain which both ATP and ALJ found was due to the knee injury. Still, the ALJ denied the employee’s request for surgery recommended by ATP and suggested a weight loss program. Employer paid for surgery, but the employee continued to have back pain. The ALJ denied two requests for catastrophic designation, and denied continued payment of the weight-loss program. The ALJ also found that any degeneration of the employee’s back had resolved as a result of the knee surgery and the employee’s continued pain was a result of her “morbid obesity.” Therefore, the back injury was not causally related to her knee injury.
The employee appealed and the Appellate Division agreed that compensability of her back was not an issue before the ALJ and should not have been addressed, since the employee had not been given notice or an opportunity to be heard – and the ALJ had already determined that the back injury was causally related. The Appellate Division instructed the ALJ to rule on the CAT request without ruling on compensability of the back. Instead, with no new evidence, the ALJ again denied the CAT request and again addressed the compensability of the back. The employee appealed again, but the Appellate Division adopted the ALJ’s award, and was affirmed by the superior court.
Citing Home Depot v. Pettigrew, 298 Ga. App. 501, 503 (1) (680 SE2d 450) 2009, the Court of Appeals found that the employee had neither notice nor an opportunity to be heard on the back issue, nor had she given express or implied consent for the issue to be heard. According to the court, “nothing in [the employee’s] testimony or anything else in the hearing transcript suggests that the parties or the ALJ believed that compensability was an issue.” Even on appeal, the employer focused on the evidence supporting CAT and not the compensability of the low back pain. There was no evidence that the parties or the ALJ ever mentioned the issue, and therefore no possibility of implied consent, which cannot arise in any event “if the parties do not squarely recognize the new issue as an issue in the trial.” See Holliday v. Jacky Jones Lincoln-Mercury, 251 Ga. App. 493, 496 (1) (554 SE2d 286) (2001). The Court of Appeals remanded with a specific instruction for the ALJ to determine the CAT request without ruling on the compensability of the low-back pain.
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
Workers Compensation Injuries from a Fall
Thursday, December 15th, 2011Idiopathic
Claimant fell as she was turning down a store aisle. She fractured her leg in the fall and subsequently filed a claim for workers’ compensation. The administrative law judge ruled that Johnson’s injury arose out of the course of employment. On appeal the Superior Court of Houston County reversed and the Court of Appeals then received the case and they reversed. Johnson v. Publix Supermarkets, 256 Ga. App. 540, 568 S.E.2d 827 (2002).
This case seems to reverse the issue of idiopathic fall and quotes many cases which state as follows: “Physical contact with some object is no necessary in order for the employee to sustain an accident within the meaning of the workers’ compensation law. See Orkin Exterminating Company v. Wright, 92 Ga. App. 224, 88 S.E.2d 205 (1955).
The Court goes on to say that the Hartford accident for the Hartford Accident & Indemnity Co. v. Cox, 61 Ga. App. 420, 6 S.E.2d 189 (1939) the Court held that to be compensable injuries do not have to arise from something peculiar to the employment.
Instead where the duties of an employee entail his presence at the place and a time, the claimant for an injury there occurring is not to be barred because it results from a risk common to all others, a concept that came to be known as a “positional risk doctrine”. While subject cases have cited Borden Foods v. Dorsey, 112 Ga. App. 838, 146 S.E.2d 532 (1965), the proposition that there must be a causal connection between the employment and the injury (such as the specific incurrence) its requirement of a “peculiar danger”, is no longer good law and was overruled by National Fire Insurance Company v. Edwards, 152 Ga. App. 566, 263 S.E.2d 455 (1979).
Slip and Fall/Rubber Mat
Plaintiff slipped and fell at a store and alleged that the store breeched a duty it owed her as an invitee when she tripped and fell on a mat. The trial court granted a summary judgment on behalf of the store. Where the Supreme Court has held 1) as a general proposition, issues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication but should instead be resolved by trial in the ordinary matter and 2) trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable. Issues such as how closely a particular retailer should monitor its premises and approaches, what retailers should know about the property’s condition at any given time, how vigilant patrons must be for their own safety in various settings and where customers should be held responsible or not responsible for looking or not looking are all questions that, in general must be answered by juries as a matter of fact rather than by judges as a matter of law. See Robinson v. Kroger Company, 268 Ga. 735, 493 S.E.2d 403 (1997) See Also American Multi-Cinema, Inc v. Brown, 285 Ga. 442, 679 S.E.2d 25 (2009) and Mairs v. Whole Foods Market Group, Inc, 303 Ga. App. 638,694 S.E.2d 129 (2010).
In Georgia, a proprietor has a statutory duty to exercise ordinary care to keep its premises safe which, includes inspecting the premises to discover possible dangerous conditions of which the proprietor does not have actual knowledge and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises. The plaintiff or invitee must prove 1) that the defendant had actual or constructive knowledge of the hazard and 2) that the plaintiff lacked knowledge of the hazardous despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.
In the case of floor mats which are subject to folding, bunching, rolling and shifting can constitute hazards for which landowners may be liable. In this case, the owner inspected the premises at 7:00 a.m. with the accident occurring at 5:00 a.m. The courts decided to leave it to a jury instead of summary judgment for adjudication because the owner may have lacked a reasonable inspection procedure. A plaintiff need not show how long a hazard was present unless the owner has first demonstrated its inspection procedures. The evidence must establish an adherence to customary inspection procedures on the day in question and not simply that such procedures exist. All of this is cited in Benefield v. Tominich, 2011 WL 982973. (CASE NO. A10A2242) (DEC’D 3/22/11).
Learn more about Slip and Fall accidents.
Exclusive Remedy in Workers Compensation Claim
Tuesday, December 13th, 2011A good discussion on exclusive remedy and an inability to sue employer in tort. Bayer Corporation et al. v. Lassiter, 282 Ga. App. 346, 638 S.E.2d 812 (2006).
Wife cannot seek consortium claim from employer where wife has sought the same. See Henderson v. Hercules, Inc., 253 Ga. 685, 324 S.E.2d 453 (1985).
Where an employee is injured outside the state and collects workers’ compensation in this state, workers’ compensation will be his exclusive remedy. See Karimi v. Crowley, 172 Ga. App. 761, 324 S.E.2d 583 (1984).
Exclusive remedy can be a jury issue. See Molton v. Lizella Recreation Club, Inc., 172 Ga. App. 154, 322 S.E.2d 354 (1984).
Since the company picnic where claimant died was not on premises, was a morale booster and was not required, the trial court properly held that the workers’ compensation act was not the exclusive remedy. Pizza Hut of America, Inc. v. Hood , 198 Ga. App. 112, 400 S.E.2d 657 (1990).
Plaintiff killed while working for DOT on Ashland-Warren site. Because DOT had control over the time, manner and method of work, workers’ comp was the only remedy and they could not sue in tort for wrongful death. George v. Ashland-Warren, Inc., 171 Ga. App. 556, 320 S.E.2d 586 (1984). Reversed in George v. Ashland-Warren, Inc., 254 Ga. 95, 326 S.E.2d 744 (1985).
Sheriff is deputy’s employer for purposes of Georgia Workers’ Compensation Act, and does not owe deputy special duty that would render Act inapplicable. Sergeant Teasley was fatally shot by Brian Nichols while on the job. His wife filed suit against various parties, including the Fulton County Sheriff Myron Freeman. The trial court dismissed the suit on the ground that workers’ compensation is the “exclusive remedy” for on the job injuries under Georgia Law. The wide appealed to the Appellate Division and argued that the trial judge erred in finding that Sheriff Freeman was Sergeant Teasley’s employer for purposes of the Act and that no unique duty was owed to Sergeant Teasley that would make the Act’s exclusive remedy provision inapplicable. Appellate Division rejected these arguments and affirmed the trial court. A sheriff would be considered a deputy’s employer under the Georgia Act because of his status as a county officer and the Act’s treatment of counties as employers. The Court of Appeals held that there was no exception to bring this case out of the exclusive remedy of workers’ compensation and Sheriff Freeman owed no unique duty to take this case outside of the Act. Teasley v. Freeman, 305 Ga. App. 1, 699 S.E.2d 39 (2010).
An employer is not protected from tort immunity under the exclusive remedy provision of the Georgia Workers’ Compensation Act if the employee’s claim is not otherwise subject to the Workers’ Compensation Act. Brian Nichols escaped from Fulton County deputies killing Judge Rowland Barnes and others. Additionally he held captive Judge Barnes’ case manager and assistant case manager. They sure the county sheriff and other employees in tort seeking special, general, and punitive damages for false imprisonment, assault, and infliction of emotional distress. Trial court granted sheriff’s motion to dismiss holding that the plaintiff’s exclusive remedy was in workers’ compensation. The Court of Appeals reversed holding that plaintiff’s had not alleged any physical injuries and therefore their claims were not within the scope of the Act. Clarke v. Freeman, 302 Ga. App. 831, 692 S.E.2d 80 (2010).
Workers’ Compensation Act is exclusive remedy for claims of heirs in temporary worker against contractor to whom temporary worker was assigned. In April 200k Boral Bricks, Inc. (BBI) hired Albert Painting Inc. (API) to paint some of the buildings at its Smyrna, Georgia plant. API contracted with Labor Ready to supply temporary workers for the job billing $16.80 per employee, per hour which included workers’ compensation insurance. Sabellona was a temporary employee supplied to API for painting BBI’s plant and on August 14, 2006 he fell through a skylight on the roof and died. His son filed a workers’ compensation claim against Labor Ready which settled for $160,000. His two other children filed a wrongful death suit against API and BBI. Trial court granted API’s motion for summary judgment holding they were protected by O.C.G.A. § 34-9-11(c) of the Act. The exclusive remedy provision prevents an injured employee or his/her dependents from bringing a tort claim against the employer. The Court of Appeals affirmed holding that API was immune from suit. Sabellona v. Albert Painting, Inc., 303 Ga. App. 842, 695 S.E.2d 307 (2010).
Temporary help firm employee killed on premises of company where he was working could not bring third party tort action against the company despite that temporary help firm paid workers’’ compensation benefits because the company was protected by the workers’ compensation exclusive remedy. Rose Marie Cyronis as personal representative of the Estate of Jeffrey C. Cyronis v. Mart Management (decided Janurary 21, 2010).
Cannot File Tort Action if Case is Settled by No Liability Stipulation
O.C.G.A. § 34-9-15: Where a dispute over the applicability of the Workers’ Compensation Act exists but the parties want to settle a claim, the Board is authorized to approve a settlement agreement which contains a “no-liability” stipulation and to enforce any compensation payment agreed to in the settlement. Moreover, where compensation is paid pursuant to a settlement under § 34-9-15, the exclusive remedy provisions of O.C.G.A. § 34-9-11(a) bar a subsequent tort suit by the insured party despite a stipulation in the settlement agreement that there was no liability under the Act. Ridley v. Monroe, 256 Ga. App. 686, 569 S.E.2d 561 (2002); Theesfeld v. Image Electrolysis and Skin Care, Inc., 274 Ga. App. 38, 619 S.E.2d 303 (2005).
Employee of General Contractor Liable
Employee of independent subcontractor, who received workers’ compensation benefits for injuries he sustained during the scope of his employment on the job site when he was accidentally injured by the general contractor’s employee, brought action against the general contractor and its employee seeking damages. The State Court, Cobb County, Tom Cauthorn, J., entered summary judgment in favor of the defendants, and appeal was taken. Long v. Marvin M. Black Co., 163 Ga. App.633, 294 S.E.2d 641, affirmed.
Certiorari was granted. The Supreme Court, Hill, C.J., held that the claim against the general contractor was barred by tort immunity, but the employee was not immune from tort liability because the two employees were not employed by the same employer. Long v. Marvin M. Black Co. 250 Ga. 621, 300 S.E.2d 150 (1983).
Immunity from Suit
A good discussion on the immunity applied for tort law and that tort law does not apply to workers’ compensation cases. See Bayer Corporation et al. v. Lassiter, 282 Ga. App. 346, 638 S.E.2d 812 (2006).
Statutory employer/are immune from suit tort claims based on their potential liability for workers’ compensation benefits. See Warden v. Hoar Construction Company, 269 Ga. 715, 507 S.E.2d 428 (1998). Further this immunity applies even if the general contractor never actually paid any workers’ compensation benefits to the employee. Bossard v. Atlanta Neighborhood Dev. Partnership, 254 Ga. App. 799, 564 S.E.2d 31 (2002).
Immunity from Suit—Tort suit can be made against employer
Misrepresentation by Employer to Treating Doctor about Legality of Chemicals: An employer, who misrepresents to a treating doctor that a certain chemical exposure to a claimant is not harmful when in fact it is, amounts to a misrepresentation that will waive any immunity under the Georgia Workers’ Compensation Act. See, Potts v. UAP-GA, AG Chem, Inc., 227 Ga. App. 841, 490 S.E.2d 432 (1997) Rev’d. by Potts v. UAP-GA, AG Chem, Inc., 270 Ga. 14, 506 S.E.2d 101 (1998).
Research about Contractor’s Relationships
O.C.G.A. § 34-9-11
States that however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits, and other than a construction design professional.
The immunity provided by this subsection shall apply and extend to the business using the service of a temporary help contracting firm, such term is defined in Code Section 34-8-46, or an employee leasing company, as such term is defined in Code Section 34-8-32, when the benefits required by this chapter are provided by either the temporary help contracting firm or the employee leasing company or the business using the services or either such firm or company. A temporary help contracting firm or an employee leasing company shall be deemed to be a statutory employer for the purposes of this chapter.
Paz v. Marvin M. Black Company 200 Ga. App. 607, 408 S.E.2d 807 (1991)
The court reversed the grant of summary judgment for the general contractor’s employees because they did not share in the statutory immunity where they were not employees of the subcontractor.
The general contractor Marvin M. Black Company. We are required by Long v. Marvin M. Black Co., 250 Ga. 621, 300 S.E.2d 150 to reverse the summary judgments granted to the employees of Marvin M. Black Co. Established that HN1(upwards arrow) the liability of the general contractor for workers’ compensation benefits renders it liable for workers compensation benefits as the “statutory employer” of its subcontractor’s employee; but according to the Supreme Court’s decision in Long, Supra, the employees of the general contractor do not share in that statutory immunity, as they are not “employee(s) of the same employer” (O.C.G.A. § 34-9-11) AS Paz.
But plaintiffs assert they have sued each of these individual employees of the general contractor on account of a breach of a specific management or supervisory duty. There is evidence raising an issue of the fact as to there being committed a negligent act in managing supervising or implementing the safety program therefore, we cannot find they have borne their duty as movants to prove they are entitled to judgment as matter of law.
