NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
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This year’s legislative session brought about little substantive change in our code. One anticipated change that has gone into effect are newly established caps for TTD, TPD, PPD and the maximums for Spousal dependency benefits where the surviving spouse is the sole primary beneficiary. The new established caps do apply only to dates of accident on and after July 1, 2022.
The new maximum rates for indemnity are as follows:
Also effective July 1, 2022 is a change in the maximum benefit payable to a surviving spouse with no other dependents. This figure goes from a maximum cap of $270,000.00 to $290,000.00 for dates of accident on or after July 1.
Effective July 1, 2022, there were also slight modifications to Board Rules 203 and 205. The Board approved a new peer review organization in 2021. Claims Eval is the Board’s approved peer review organization and reviews disputes between medical providers and employers and insurers regarding medical charges. Some changes were made to the process and procedures for filing for peer review.
A change was also made to the rule to clarify that all medical treatment, items, and services covered by O.C.G.A. §34-9-200 can be included in the PMT process. This latter change will be very helpful to the already successful PMT program that allows for requests and denials of certain medical procedures, items and services be done on an expedited basis.
Another note worth mentioning is the firm position that our Board continues to take on proper filing of Board forms in active claims. Adjusters and other claims handlers will be held to a high standards as it relates to required filings and, when the opportunity arises, our Administrative Law Judges remind the section of this point. Attorney’s fees and civil penalties will continue to be assessed for non-compliance issues and we should all consider ourselves on notice.
Finally, On October 19, 2021, the first Georgia Workers’ Compensation Claim involving Covid-19 in the workplace was litigated.. The claim was brought by a widower whose deceased spouse worked as a records clerk for a county jail. The ALJ issue an Award finding that in this particular claim, Covid-19 was not a compensable injury or disease under the Georgia statute. Interestingly, the claimant’s counsel argued that Covid-19 was not an occupational disease but was rather an injury leading to disease and brought on by injurious exposure. The employer’s defense revolved around the deceased’s potential community exposure, as evidenced by bank records, as well as the extensive measures taken by the County to prevent the spread of Covid-19. Although the finding was in favor of the employer in this case, the Award left open the possibility that certain jobs or positions might lend a different result, and that is important to remember, especially for our first responder and health care clients who may be facing similar claims.
2021 has been a year of contrast in comparison to its predecessor. Our Board did continue with limited and restricted business at the beginning of 2021 and as we all adjusted to the use of “zoom” for depositions and hearings, court events and proceedings again gained some badly needed momentum. At present, in-person hearings have been reinstated with some continued restrictions and Zoom hearings and mediations have continued to play major roles in the handling of caseloads. To their credit, the Georgia SBWC has done an admirable job in maintaining vital safety standards while remaining open. Stunningly, claims between 2019 and 2020 were down only 3%, which is evidence of the efforts expended by all involved. As of 2021, our new Chairmen Ben Vinson, reported that as of 2021, legal proceedings with hearings, mediations and PMT calls are all up over 30% and that there are no case backlogs to report internally. Certainly, we expect for that trend to continue as we hopefully progress to a status quo similar to 2019.
From a legislative and revised Board Rule changes perspective, there is nothing to report. Although some proposals were reported, no new legislation emerged from the 2021 session that would impact our 34-9 statutes. Board Rule changes were limited to revisions to very nominal and minimal issues that require no further comment here. In sum, all smooth sailing to report on the legal front.
2021 has also brought about little in the way of reported caselaw of interest. In Baxter v. Tracie McCormick, 2021 WL 2701286 (July 1, 2021), the Georgia Court of Appeals provided further guidance on the Cap on Dependency benefits as referenced in O.C.G.A. 34-9-265. In Baxter, the insurer suspended benefits due to reaching the cap of $150,000.00 in payout. At the time of death, the deceased left a surviving spouse but no other minor children or other dependents. Baxter argued that her mother-in-law was a partial dependent and that this status should invalidate the cap in that regard. The Court of Appeals did not agree, finding that the mother-in-law was a partial dependent and could only receive dependency benefits if there were no persons wholly dependent. Of course, this finding further confirmed the long-standing rule that partial dependents may only recover in the absence of those that are wholly dependent.
In Sunbelt Plastic Extrusions Inc. et al. v. Paguia, A21A0867, Court of Appeals of Georgia (August 19, 2021), further guidance on the application of the change in condition two-year statute of limitations was provided. In Sunbelt, the Claimant was paid TTD through November 29, 201 and filed a WC 14/Request for Catastrophic Designation on November 20, 2018. The employer asserted a 34-9-104 Statute of limitations defense in that the last payment of TTD was “actually made” on November 15, 2016 and that the WC 14 was therefore filed after two years from that date. This issue had been previously addressed by the Court of Appeals in finding that the critical date to be determined was when the last payment was ‘mailed’ to the recipient. Unfortunately for the insurer, the evidence provided through adjuster’s testimony was not certain enough to prove by a preponderance of the evidence that the last payment was “actually made” on November 15, 2016. It was the adjusters opinion that this was the date of mailing but further confirmed to lacking certainty of that fact. Moreover, in denying the application of the Statute of Limitations, the Court of Appeals further affirmed the Board’s finding that the underlying claim was, in fact, Catastrophic. The lesson for employers and insurers is to fully document the date that TTD payments are “actually made” with as much certainty as possible.
Unfortunately, this newsletter does not contain good news for Georgia’s employers and Insurers. The Supreme Court has dealt a final blow to the scheduled rest break defense, leaving it essentially ineffective absent the most narrow of circumstances.
As is always the case, prepared employers are ever-adapting to changing conditions within our comp system and this ruling should cause us to rethink the manner in which we handle employee breaks and “free time”.
Casey B. Foreman
Levy, Sibley, Foreman & Speir, LLC
cforeman@lsfslaw.com
(866) 995-8663
UPDATE: The Families First Coronavirus Response Act for Employers
Nathan C. Levy - GEORGIA
Levy, Sibley, Foreman & Speir, LLC
(866) 995-8663
www.lsfslaw.com
Rayford H. Taylor
Of Counsel
Gilson Athans P.C.
980 Hammond Drive, Suite 800
Atlanta, Georgia 30328
770-512-0300 - Ext. 529
770-512-0070 - Fax
rtaylor@gilsonathans.com
www.gilsonathans.com
The Appellate Court found that the evidence supported the State Board
of Worker’s Compensation’s denial of benefits to the claimant
ABF Freight System, Inc. v. Presley
(Georgia Court of Appeals)
Employee not entitled to additional benefits because he could not establish he had sustained a “fictional new accident,” but rather had merely had a “change in condition.”
Summary
Employee had to prove right knee problems were a result of a fictional new injury, rather than a change in condition arising out of normal life. He failed to prove a new injury, so not entitled to benefits.
Discussion
Mr. Presley worked for ABF Freight System, Inc. as a truck driver and dock worker. He sustained a compensable injury to his right knee, had surgery, and received temporary total disability (“TTD”) benefits during his absence from work. He later returned to work without restrictions or limitations and continued to perform his normal job duties. However, his right knee pain worsened and he was diagnosed with arthritis in the knee and was advised that he would eventually need a right knee replacement.
Mr. Presley also sustained a compensable job-related injury to his left knee, had surgery and again ultimately returned to work without restrictions or limitations and resumed his normal duties. His right knee pain continued to worsen following his left knee surgery. He had apparently suffered a tear of the medial meniscus to his left knee but continued his normal job duties even as his right knee pain worsened.
After an additional year of continuing to work in his regular job duties following his left meniscal tear, the doctor informed Mr. Presley that a total right knee replacement was necessary. Mr. Presley had the surgery and was placed on a “no work” status and sought payment of TTD benefits, arguing that he had sustained a fictional new injury. ABF argued that it was a change in condition for the worse, and the right knee condition and it was not compensable.
Whether an employee suffers a fictional new injury or change in condition is a question of fact for determination by the administrative law judge (“ALJ”). In this case, the ALJ denied benefits, finding that Mr. Presley did not suffer fictional new injury and that the two-year statute of limitation barred his claim since he had last received TTD benefits for his right knee more than years prior. On appeal, the State Board adopted that decision.
The parties agreed that there was no singular specific incident creating an immediate need for Presley’s total right knee replacement. Instead, the dispute was whether Presley’s total temporary disability arising from his right knee replacement should be characterized as a fictional new accident or a change in condition for the worse.
A fictional new injury, or aggravation of a pre-existing condition, occurs when a “claimant is injured on the job but continues to perform the duties of his employment until such time that he is forced to cease work because of the gradual worsening of his condition which was at least partly attributable to his physical activity in continuing work subsequent to his injury.” Central State Hospital v. James, 147 Ga. App. 308, 309, 248 S.E.2d 678 (Ga. App. 1978).
A change in physical condition, on the other hand, occurs when a claimant sustains an injury and is awarded compensation during his period of disability. Subsequent thereto, the employee returns to employment performing his normal duties or ordinary work. Then as a result of the wear and tear, ordinary life and the activity connected with performing his normal duties and not because of any specific job-related incident, his condition gradually worsens to the point where he can no longer continue to perform his ordinary work.
Ordinarily, the distinguishing feature that determines whether that disability is either “a change of condition” or a “fictional new accident” is the intervention of new circumstances. Whether an employee suffers a fictional new accident or a change in condition is a question of fact to be determined by the ALJ. In this case, the Appellate Court found that under the “any evidence rule” the findings of the State Board and the ALJ had to be affirmed.
________________________
ABOUT THE AUTHOR
The article was written by Rayford H. Taylor, Esq., Of Counsel to Gilson Athans P.C., a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and all other liability and commercial matters. Mr. Taylor is admitted to practice law in Florida and Georgia and is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Taylor and Gilson Athans are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.
Rayford H. Taylor
Of Counsel
Gilson Athans P.C.
980 Hammond Drive, Suite 800
Atlanta, Georgia 30328
770-512-0300 - Ext. 529
770-512-0070 - Fax
rtaylor@gilsonathans.com
www.gilsonathans.com
Employee Entitled to receive Temporary Total Disability Benefits
Burns v. State of Georgia, Department of Administrative Services
(Georgia Court of Appeals)
Employee entitled to receive temporary total disability (“TTD”) benefits following termination because Employer was found to have terminated her because of her work-related injury.
Summary
LaVerne Burns was a receptionist for the State of Georgia, Department of Administrative Services. She was injured when the chair she was sitting in collapsed. She received worker’s compensation benefits in connection with the injury, but continued to work in her position until her employment was terminated. She then sought TTD benefits. An administrative law judge (“ALJ”) awarded Ms. Burns TTD benefits, finding the reasons the employer gave for terminating her employment were pretextual and she was terminated due to her work injury. The State Board’s Appellate Division upheld the award of TTD benefits.
Discussion
Following her employer’s termination, the claimant sought TTD benefits. The employer challenged the request on the grounds that her employment was terminated for reasons unrelated to her injury and because she had not sought another job. After the trial, the ALJ awarded Burns TTD benefits and specifically found she was a credible witness and “the reasons given by the employer to justify her termination were pretextual and that she was terminated due to her work injury.” Because the real reason for the termination was the work-related injury and claim, the ALJ determined Burns had carried her burden of proving, by a preponderance of the evidence, entitlement to TTD benefits.
As a general rule to obtain benefits, a claimant is required to show either that they have searched for another position or that they had been working in a restricted capacity when their employment was terminated. The Supreme Court of Georgia inPadgett v. Waffle House, 269 Ga. 105, 498 S.E.2d 499 (Ga. 1998), clarified that showing a diligent but unsuccessful effort to secure employment following termination was a way of establishing the necessary element of causation. However, in this case, by proving the work-related injury was the proximate cause of the termination, the claimant established the causal link between injury and her worsened economic condition. Therefore, she did not have to establish she had searched for another position. Finding the reasons for the termination were a pretext to avoid continued payment of benefits satisfied the proximate cause requirement.
The Court said the issue was not whether Burns sought new employment or whether she was working under restrictions when the employer terminated her, but whether she demonstrated the necessary causal link between her work-related injury and her worsened economic condition. The fact that the employer gave pretextual reasons for terminating her employment, which was due in part to Burns’ work-related injury, established the causal link. The case was remanded back to address whether or not there was sufficient evidence to establish the finding of her termination based upon a pretext.
________________________
ABOUT THE AUTHOR
The article was written by Rayford H. Taylor, Esq., Of Counsel to Gilson Athans P.C., a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and all other liability and commercial matters. Mr. Taylor is admitted to practice law in Florida and Georgia and is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Taylor and Gilson Athans are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
Reid v. Metropolitan Atlanta Rapid Transit Authority ("MARTA")
(07/16/2013, Georgia Court of Appeals)
Georgia Court of Appeals rules that claims seeking only alleged past due benefits or penalties are not subject to the two-year statute of limitations. Employee allowed to pursue claim for alleged past-due penalties on late-paid indemnity benefits eight years prior.
Mr. Reid was injured at work in October, 1999, and filed a claim for benefits with the State Board of Workers' Compensation. MARTA did not controvert the claim and began paying him temporary total disability ("TTD") benefits, and ultimately made a total of 32 payments. It was undisputed that 12 of those payments were untimely or late. The claimant returned to work on June 10, 2002, at which time the payment of TTD benefits was suspended.
In May, 2010, Mr. Reid's attorney sent a letter to MARTA requesting it pay the statutory penalty due on the 12 late TTD payments. MARTA declined, asserting that demand for payment was barred by the applicable statute of limitations. The matter went to a hearing on the payment of statutory penalties. The administrative law judge denied Mr. Reid's request, finding the claim constituted a "change in condition" and was therefore barred under the two-year statute of limitations. The ALJ's ruling was affirmed by the appellate division of the State Board, which was also affirmed by the Fulton County Superior Court. The Georgia District Court of Appeals reversed the ruling that the two-year statute of limitations was applicable, as the employer/insurer had failed to pay the late payment penalties nearly ten years earlier. The Court found that since the employee was not seeking to recover statutory late payment penalties because of his physical or economic condition, but because the penalties constituted benefits due him under the law. Therefore, the two-year statute of limitations did not apply.
This opinion appears to contain two important issues. One is that the two-year statute of limitations may not apply in any case in which an employee is seeking to recover all benefits "due," rather than additional benefits due as a result of either the accident or a change in condition. This would arguably encompass late payment penalties, missed TTD checks, correct calculation of AWW or TTD rate, even if a substantial period of time (in this case, ten years) had passed since the last payment. Whether or not this decision allows for the resurrection of any "unsettled" or "unresolved" claim based upon the failure of the employee to receive the benefits or penalties is not clear. It should also be noted that Mr. Reid's initial indemnity claim with the State Board remained pending and was not closed. In the future, such claims should proceed to hearing, or be dismissed to minimize the potential for extremely old claims being reasserted.
The other interesting issue is whether or not payment or an award of the late payment penalties somehow resurrects the two-year statute of limitations for an additional "change in condition" claim.
In reaching its conclusion, the Appellate Court indicated that under the statute's current language, an employer is precluded from asserting the statute of limitations as a defense to any subsequent attempt by an employee to recover payment of compensation which has accrued and owed him as a matter of law but which was wrongfully withheld by the employer. The Court also noted that applying the statute could lead to some results which may be considered absurd. However, that absurdity needed to be addressed by the Legislature, rather than by the Courts.
At this point, it should be assumed an effort will be made to get the Supreme Court of Georgia to take this case for review. If it is presented to the Supreme Court for consideration, the ruling could have far-reaching effects on the system here in Georgia.