State News : Georgia

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


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.


Georgia

LEVY SIBLEY FOREMAN & SPEIR, LLC

  877-284-4034

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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

JMJ Plumbing v. Cudihy, (11/30/2012)

The State Board's Denial of Workers' Compensation Based on Employee's Failure to Prove Compensable Injury Upheld on Appeal

Cudihy worked for JMJ as a plumber. On September 2, 2008, while performing a digging task on the job, Cudihy felt a sharp pain in his back that radiated to his leg. He took a break for a few minutes, then went back to work. Cudihy did not report the injury to his employer, and continued to perform his regular work duties.

After work, Cudihy went to "Physician's Immediate Med" for treatment. He told the treating physician he had developed back pain over the weekend and experienced pain while digging that morning. He was diagnosed with muscle spasms and prescribed muscle relaxers. He sought further treatment in January 2009 and was diagnosed with low back pain. He went to a chiropractor in March 2009, where he was diagnosed with muscle spasms. In May and June 2009, he saw an orthopedist, who diagnosed him with possible disk herniation. On June 3, 2009, the orthopedist recommended that Cudihy be placed on light duty work and that he might need surgery.

On June 25, 2009, Cudihy first reported the injury to JMJ, which placed him on light duty work full-time.  Cudihy continued to work at JMJ on light duty until August 2009, when he was terminated for reasons unrelated to his injury.

Cudihy subsequently applied for workers' compensation benefits, alleging a June 25, 2009 injury date.  JMJ controverted the claim but, after a hearing, an ALJ awarded Cudihy disability income and medical benefits.  The ALJ found, among other things, that Cudihy had sustained a work-related injury to his back on September 2, 2008 and, citing the "new accident" theory (regarding a gradual worsening of condition) found that he had sustained a work-related injury on June 25, 2009.

The State Board vacated the ALJ's award and denied Cudihy's claim. The Board found the preponderance of the evidence did not support the ALJ's finding that Cudihy had sustained a new accident on June 25, 2009 related to his work. The Board found Cudihy had not established or reported the occurrence of an initial work injury, making the theory of a fictional new injury (on June 25, 2009) inapplicable; and, no disability manifested on the designated new accident date of June 25, 2009, inasmuch as that date did not represent the date Cudihy's condition had worsened as a result of his work activities to the point he could no longer perform his job. The Board noted Cudihy had continued working beyond that date (June 25) and he had acknowledged that he was capable of working as a plumber at the time he was terminated. The Board also found that no September 2, 2008 injury was compensable because: (a) Cudihy did not establish that he sustained a work injury on September 2, 2008; and (b) Cudihy did not give adequate notice of a work injury to JMJ.

The Board found he failed to show he sustained a new accident on June 25, 2009. The Board cited, among other things, evidence that:  Cudihy had injured his back during the weekend preceding September 2, 2008; when seeking medical treatment on September 2, 2008, he did not indicate that he was injured on the job, even when specifically asked. He admitted he had not sustained any injury on June 25, 2009. He did not become unable to work on June 25, 2009, as he  continued working until August 12, 2009, when he was fired for unrelated reasons. By his own admission, at the time of his termination he was physically capable of continuing to perform his job. He worked as a plumber after his termination, and his work activity did not worsen his condition. There was also evidence Cudihy suffered no injury on the job after September 2, 2008, that his symptoms were the same on September 2, 2008 as they were at the time of the administrative hearing, and that all of his pain was attributable to the September 2, 2008 accident.

For accidental injury to be compensable under the Workers' Compensation Act, the injury must … occur in the course of the employment … [and] arise out of the employment.  Whether an injury arose out of and in the course of employment is an issue of fact. 

The Appellate Court noted the Board's findings, when supported by any evidence, are conclusive and binding. Because some evidence supported the Board's findings that Cudihy had failed to prove that he was injured on the job and that he continued to perform his job duties until he was forced to stop work due to a gradual worsening of his condition, defeated his workers' compensation claim. The Board's Decision was upheld on appeal.

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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

Carr v. FedEx Ground Package Sys., Inc., (10/02/2012)

Statutory Employer Entitled to Workers' Compensation Immunity Following Settlement of Case Between Employee and Immediate Employer

This was an action for personal injuries, which Lester Carr sustained while working at a FedEx facility. His wife, Charlene Carr - individually and as his guardian and the conservator - appealed from a grant of summary judgment to FedEx Ground Package System, Inc. ("FedEx"). Fed Ex contended the action was barred by the exclusive remedy provision of the Workers' Compensation Act. 

On July 2, 2007, Lester Carr was seriously injured in a fight with a FedEx employee at a FedEx facility. At the time, Lester Carr was at the facility pursuant to his work as a truck driver for J. Wigg Trucking, Inc., a sole proprietorship owned by Jethro Wiggins ("Wiggins") that had a contract to provide trucking services to FedEx.

In a separate proceeding, Charlene Carr obtained workers' compensation benefits on Lester Carr's behalf from Wiggins.  Charlene Carr then filed the instant personal injury action against FedEx, alleging negligent hiring, supervision and retention, as well as failure to maintain safe premises. The trial court granted summary judgment to FedEx on the ground that FedEx was a statutory employer immune from liability under the exclusive remedy provision of the Workers' Compensation Act.

O.C.G.A. § 34-9-8(a) provides that "[a] principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer." O.C.G.A. § 34-9-8(a) applies only where the principal has contracted to perform certain work for another and has subcontracted some or all of that work.

On appeal, Charlene Carr contended that genuine issues of material fact existed as to whether Lester Carr's injuries were compensable under workers' compensation as arising out of and in the course of his employment. The court noted it is undisputed that Lester Carr obtained workers' compensation benefits for those injuries under a settlement with his immediate employer, Wiggins.  Because Lester Carr settled his workers' compensation claim, his representative cannot avoid summary judgment by arguing a genuine issue of material fact existed regarding the compensability of his injuries.

Since FedEx was Lester Carr's statutory employer at the time of the injury, it was entitled to workers' compensation immunity following settlement of his case.

 

703206-1

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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

Smith, et al. v. Ellis (09/10/2012)

A co-employee may be sued in tort even after the claimant settles his Workers' Compensation claim if the co-employee was acting outside employment when he injured the claimant.

An employee who was accidentally shot in the thigh by a co-worker, entered into a "no liability" settlement with his employer that was approved by the State Board of Workers' Compensation. He then brought a negligence action against the co-worker.  The trial court entered summary judgment in favor of the co-worker on grounds the tort suit was barred by Workers' Compensation Act's exclusive remedy provision.  Employee appealed. Upon an equal division of the Judges of the Court of Appeals, the case was transmitted to the Supreme Court.

The Supreme Court of Georgia held that:

(1)         a "no liability" settlement barred employee from bringing an action for the same injury against an employee of the same employer;

(2)         the phrase "employee of the same employer" means a person who is acting as an employee rather than as a third party to the employment relationship at the time of the injury in question; and

(3)         fact question regarding whether co-worker was acting in the scope of employment precluded summary judgment in favor of co-worker.

In February, 2009, Smith and Ellis were both employed by The Knight Group, a company that builds and sells new houses.  Smith was assigned to work at the Westcott Place subdivision in Dawsonville, and Ellis was assigned to the Red Hawk Ridge subdivision in Cartersville.

On February 12, Ellis called Smith to arrange a meeting so that he could borrow one of Smith's tools for his personal use.  Ellis also wanted to shoot some new guns he had purchased.  The next morning, the two men met at a house that Smith was finishing in Westcott Place. Ellis made one phone call regarding a problem with the house and then followed Smith through a couple more houses for which Smith was responsible before they went to lunch around 11:00 a.m. Smith and Ellis returned to the subdivision at 1:00 p.m., where Smith continued to work. Ellis had no work to do and left that part of the property to avoid being seen by one of his supervisors, since he was not supposed to be at Westcott Place. Later, Ellis began firing his new rifle while Smith organized his work tools next to his truck. The rifle jammed three times.  Ellis successfully cleared the first two rounds, but he accidentally shot Smith in the right thigh when he tried to clear the third round. The bullet went through Smith's right leg and into his left leg, causing serious injury.

The Knight Group fired both men shortly after the shooting.  Smith filed a workers' compensation claim against the employer, alleging his injury was compensable because it arose out of and in the course of his employment. The Knight Group ultimately agreed to pay Smith $6,000 in exchange for his stipulation that he had not sustained a compensable injury. Pursuant to O.C.G.A. § 34-9-15(b), the "no liability" settlement was submitted to and approved by the Workers' Compensation Board, which issued an award denying the employer's liability on June 4, 2009.

Nine months later, Smith sued Ellis for negligence, and Smith's wife sued for loss of consortium. The Supreme Court recognized that if the victim is a co-employee, the Workers' Compensation Act may protect employees who commit torts of all varieties in the course of their employment. The question in this case was whether the Act protects an employee tort-feasor when the tort Is committed outside the course of the tort-feasor's employment.

The answer to that question was a factual matter, so the trial court's judgment granting summary judgment to Ellis was reversed, and the case remanded to the Court of Appeals with directions that it be remanded to the trial court for further proceedings.

 

681014-1

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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

Decostar Industries, Inc., et al. v. Juarez

Factual findings of the State Board of Workers' Compensation will be upheld if supported by any evidence, and the Board's ruling will not be reversed on appeal based solely on the facts.

The record reflects Ms. Sonia Juarez began working on Decostar's production line in 2006.  Her duties included moving automotive bumpers weighing approximately 15 pounds from the floor to a chest-level bench; using a blade to cut two holes in them; sanding them; placing them at a separate work station; and later placing them into a mold.  In August 2009, she began to experience pain in her right shoulder and arm, and reported it to her employer.  Because Decostar did not offer medical treatment, she saw her own general practice physician, Dr. Gonzalez, who referred her to an orthopedist, Dr. Anthony Colpini.  Dr. Colpini, on January 20, 2010, placed Juarez on work restrictions.  He concluded that her injuries, while not caused by work, were aggravated by her job duties.

Ms. Juarez resigned on April 13, 2010 because of the injury to her right shoulder.  She saw Dr. Robert Karsch  who diagnosed her with, among other things, rotator cuff tendinopathy and impingement syndrome, finding that the direct cause of her shoulder injury and pain was the repetitive nature of her job, as opposed to being an aggravation of a pre-existing condition.  Dr. Duncan Wells, on behalf of Ms. Juarez, issued an opinion agreeing with Dr. Karsch that the injuries were a direct result of her job duties.

After a hearing, an administrative law judge (“ALJ”) concluded Ms. Juarez aggravated a long-standing right shoulder condition by performing her repetitive job duties; but she was not entitled to temporary total disability benefits from the date of her resignation because light-duty work remained available to her; she was not entitled to change her treating physician from Dr. Colpini to Dr. Karsch; and Decostar was only responsible for MRI expenses.  Juarez appealed, and the Board's appellate division adopted the ALJ's decision.  Juarez then appealed to the superior court, which, after a hearing, found in her favor, reversing the findings of the Board's appellate division.

On appeal to the District Court, Decostar argued the trial court's decision to designate the claim as a new injury rather than an aggravation of a pre-existing injury resulted from its improper reinterpretation of evidence and misapplication of the standard of review.

The ALJ in the case chose to believe Dr. Colpini, although his testimony was contradicted by other evidence.  The District Court ruled because courts reviewing a decision of the Appellate Division are not authorized to weigh the evidence in the first instance or substitute their own findings of fact for those of the Appellate Division, the superior court had no authority to interfere with the decision of the Appellate Division.  The ALJ and appellate division were authorized to conclude Ms. Juarez had a pre-existing condition that was aggravated by her job duties.  Thus, the trial court erred when it found that the record contains “no evidence” that Juarez suffered from medical conditions that predate her work for Decostar.  We reverse.

The District Court reversed the Superior Court's ruling and upheld the ALJ and the Appellate Division's denial of Ms. Juarez's claims.

 

671260.1

 

 

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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

Michael Caputo v. ABC Fine Wine & Spirits

On March 3, 2010, Claimant, an electrician for the Employer, fell and hit his head on the floor while cutting down shelving with a saw in the Employer's store.  Claimant was diagnosed with left temporal hemorrhage, seizure disorder possibly secondary to the left temporal hemorrhage, and toxic encephalopathy secondary to the left temporal hemorrhage.  There was no dispute Claimant was on the Employer's premises and performing his job duties when injured.

 

Claimant filed a petition for benefits seeking a determination that the accident was compensable, TTD benefits, penalties, interest, attorney's fees, and costs.  The Employer/Carrier (E/C) denied the claim on the basis that Claimant's fall resulted either from a pre-existing or idiopathic condition.

 

Although Claimant recalled working that day, he had no recollection of how the accident occurred.  Claimant's independent medical examiner (IME) opined that, rather than a seizure or fainting spell, Claimant's head impacting the floor caused Claimant's closed-head injuries.  The doctor was unable to state within a reasonable degree of medical certainty whether any factor related to employment caused the fall.  The E/C's IME also opined that the blow to Claimant's head was from the floor, and not the fall, and caused his brain to hemorrhage.  In February, 2008 Claimant fell in the shower, resulting in a 10-second loss of consciousness, head trauma, and concussion.

 

The JCC denied compensability of Claimant's injury.  The JCC found that no objective medical evidence supported a finding that the work performed caused Claimant to fall because "neither [IME] could opine with certainty whether the seizure precipitated the fall or occurred as a result of the fall."  Although the JCC specifically rejected the E/C's defense that Claimant had a pre-existing condition which predisposed him to falling, the JCC found the Claimant's fall was idiopathic, and was not caused by the employment.

 

The First District held that in the absence of any evidence which could support a finding there were competing causes of Claimant's accidental injuries, the JCC erred in ruling his injuries were not compensable.  It was undisputed Claimant's closed-head injuries resulted from Claimant's head impacting the floor while Claimant was removing shelving from the Employer's store.  Further, the JCC found Claimant had no pre-existing conditions which may have caused Claimant to fall.  In the absence of competing causes of Claimant's accidental injuries, the Court found the Claimant satisfied the major contributing cause requirement when evidence showed he was removing shelving in the Employer's store at the time of the accident and suffered closed-head injuries as a result of the accident.

 

In the absence of any other ascertainable cause, Claimant established a sufficient connection between his work and the accident in question by producing evidence that he was cutting down shelving with a saw in the Employer's store, performing one of his job duties.  Thus, the JCC erred in ruling that Claimant's injuries were not compensable.

 

 

668686.1

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

Flores v. Dependable Tire Co., Inc.

The Court of Appeals held the evidence was sufficient to support Workers’ Compensation Board’s finding that claimant did not sustain a change in condition based on injuries sustained in an intervening motor vehicle accident while leaving a doctor’s appointment related to his compensable work-related back injury.

Employer sought judicial review of Workers’ Compensation Board’s finding that automobile accident did not break the chain of causation of claimant’s work-related back injury, and that his condition was directly and causally related to the work injury.

The record establishes that Flores sustained a compensable on-the-job injury on February 12, 2008, when he injured his back while lifting a large tire.  He did not return to work.  His claim was accepted by the employer, Dependable Tire Co., Inc., which paid indemnity benefits to Flores.

On November 18, 2008, as Flores was leaving a doctor’s appointment related to the February compensable injury, the vehicle in which he was riding was struck from the rear, and he was slammed into the dashboard, causing him to lose consciousness.  The vehicle in which Flores was traveling was provided by the employer.  Although Flores testified that he did not choose the transport service provided to him, there was evidence the employer’s insurance company provided the vehicle because his attorney requested it and that the employer was not involved in scheduling Flores’s appointments.  As a result of the collision, Flores complained of pain in this neck and back, as well as in his chest, abdomen, pelvis and knees.  He was diagnosed as having acute chest, abdomen, and pelvic blunt trauma, neck sprain, and acute contusions to both knees.

In April of 2009, Flores returned to the treating physician, but did not report the November automobile accident to him.  Nevertheless, the doctor noted that Flores again reported his pain level as an eight out of ten; that the accident aggravated Flores’s neck and back injuries; but that his diagnosis of lumbar disk herniation and cervical disk herniation was the same before and after the accident.

Affirming the ALJ’s award, the Board concluded the accident did not break the chain of causation of Flores’s injury and that his condition was directly and causally linked to the work injury.  The Board adopted the ALJ’s conclusions without expressly analyzing the issue of whether the accident should be considered work-related.

655105-1

Hearn v. Dollar Rent A Car, Inc., et al.

Court ordered Employer/Insurer to issue settlement check to Claimant but without listing Medicare as a co-payee when release recognized Claimant’s responsibility to pay Medicare lien.

Minnie Hearn filed her complaint against DTG, York, and Dollar based upon a dispute as to whether a $20,000 settlement check should include Medicare as a payee.  The settlement arose from a November 28, 2002 automobile accident in which the driver of a car rented from DTG struck Hearn’s vehicle.  DTG “contractually retained York as an independent Third Party Administrator (“TPA”) to handle claims in Georgia against DTG’s renters.”

During settlement discussions between Hearn’s attorney and a claims adjuster with York, the issue of Medicare’s involvement arose.  According to the claims adjuster, she relied upon the attorney’s representation that Medicare did not have an enforceable lien when she agreed not to include Medicare as a payee on the check.

The attorney’s version was that “from day one” he and the claims adjuster both knew Hearn had been on disability and that Medicare paid some of her bills relating to the accident.  In support, he pointed to the medical bills he provided to the claims adjuster in May of 2004 indicating Medicare had made adjustments, write-offs, and payments.

On October 5, 2004, the claims adjuster offered in writing to settle Hearn’s claim for $20,000.  There was no mention of Medicare being an additional payee on any settlement check in this letter.  Hearn signed the release, which included her agreement to indemnify against “all further liability, loss, damage, claims of subrogation and expense.”  She also agreed to release “known and unknown liens including Medicare.”  After returning the executed release to the adjuster, the settlement check included Medicare as a payee.

Under Medicare statutory and regulatory framework, York faced potential liability for both the amount of any Medicare lien and double the amount if Hearn failed to satisfy any such lien within 60 days of receiving the settlement check.  The adjuster stated the potential liability was the basis for adding Medicare to the settlement check.  Hearn sued to require another check be issued without Medicare being listed as a payee.

After reviewing and considering the Medicare reimbursement statutes and regulations relevant to the specific facts of this case, the Court concluded that public policy does not preclude a court from enforcing an agreement to omit Medicare as a co-payee on a settlement check where, as here, the plaintiff signed a release that acknowledged her responsibility to pay any Medicare claim and agreed to indemnify the released parties.

655131-1

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

Harris v. Eastman Youth Development Center

The Court of Appeals held that whether claimant’s low-back pain was compensable wasnot an issue before ALJ at hearing on claimant’s request to have work-related injury declared catastrophic, so ALJ erred in determining that issue.

In June 2002, Harris was employed as a cook at the Eastman Youth Development Center when she was kicked in the left knee by a resident. The injury initially kept her out for six weeks, but she eventually returned to work on light duty. Approximately four to five months later, the pain in her knee worsened, and she developed low-back pain. The treating physician determined that her low-back pain was related to the alteration of her gait as a result of the knee injury. She stopped working in April 2003 and underwent two procedures to her knee. The treating physician ultimately recommended a total knee replacement and hoped the surgery would alleviate the pain in Harris’s knee and back.

After undergoing the total knee replacement surgery in 2007, Harris continued to experience worsening low-back pain and sought treatment. In March 2010, Harris again sought a catastrophic designation of her claim and continued payment for the weight-loss program. The

ALl denied both requests and, in doing so, also determined that any degeneration of Harris’s back as a result of the knee injury had been resolved by the knee surgery and that the Employer was no longer responsible for Harris’s low-back pain. The ALl further determined the continuing pain in Harris’s back was attributable to her “morbid obesity”. Therefore, the back injury was not causally related to the knee injury.

On appeal, the Appellate Court agreed with Harris that the ALl erred by making a determination as to the compensability of her low-back pain when that issue was not before the ALl Because there is no evidence Harris “had notice and an opportunity to be heard on the issue of compensability, or gave implied consent to trial of that issue, the ALI erred as a matter of law in making factual findings on that issue.”

On remand, the ALI was instructed to make a determination as to whether Harris’s claim met the criteria of a catastrophic injury. The ALI was advised to decide that issue without addressing the

compensability of her low-back pain which the Court noted the ALI had previously determined was compensable.

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