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).

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.

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.

Approximately 5000 trucks per year are involved in fatal traffic accidents in the United States. Most commercial vehicle (CMV) accidents happen in the middle of the day and are caused simply by lack of sleep.

To keep drivers rested and prevent fatigue related accidents  the Federal Motor Carrier Safety Administration has set up regulations that limit the number of hours truck drivers are allowed to drive per day and week. Rushing to their destination, or rushing home, drivers often don’t pay attention to the law and put other people’s lives, and their own, in danger.

You should be able to find out if a driver failed to obey the regulations set up by the FMCSA by looking at their logbook.  This simple notebook with a grid pattern is one of the most important pieces of evidence in any CMV accident. In it, the drivers keep track of their hours, both on- and off-duty.  The logbook divides the day into 15-minute segments and time is recorded visually:

Here are some key things to look for as you read the CMV driver’s logbook grid:

1.  11-hour driving limit: driver is not allowed to drive for more than 11 hours.

2.  14 hour on-duty limit: driver is not allowed to drive after being on duty for 14 hours; being on-duty includes loading and unloading cargo, fueling and inspecting the vehicle.

3.  10 hour mandatory off-duty: driver must spend 10 hours off-duty after a 11- to 14-hour on-duty period.

4.  60 hours on-duty in 1 week: driver is not allowed to drive if they have been on-duty for 60 hours in 7 consecutive days.

Until Feb 27, 2012 any time in the CMV was considered on-duty time unless the driver was in the sleeper berth.  Beginning February 27, 2012, however, resting in a parked CMV or sleeping for up to 2 hours in the passenger seat is considered off-duty.

For examples of driver logbooks and for more information, visit the FMCSA website at http://www.fmcsa.dot.gov/rules-regulations/topics/hos/index.htm.

If you have been injured due to a truck driver’s negligence, or failure to obey these basic regulations, contact Victor Alexander or call 404.815.1776.

As head custodian at an elementary school, Claimant was required each day to unlock and open the gates to the school. On a very dark and rainy morning, she pulled her car close to the gate to shine the headlights on the lock. As she was unlocking the gate, her car began to roll downhill, away from the gate. She went after the car, but tripped and fell after a few steps, and the car ran over her foot, which was later amputated. The ALJ awarded benefits, but the case was reversed by the full Board and affirmed by the Superior Court of Coweta County.

The Appellate Division applied the “deviation rule” to deny benefits, holding that in going after her car, Stokes “undertook a personal mission, in pursuit of her property, not connected to her duties with the employer.” But the Court of Appeals reversed in favor of the employee, ruling that she sustained an injury arising out of and in the course of her employment. “But for the necessity that she stop her car on the sloped driveway and exit the car to open the gate, the accident would not have occurred.” The Appellate Division had erroneously applied the deviation rule, said the Court of Appeals: “It contravenes the humanitarian purpose of the Worker’s Compensation Act and distorts the definition of a deviation from employment to say that her attempt to stop the rolling car was a purely personal mission.”

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

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.

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.

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).