1 GEORGIA BREAKOUT SESSION Swift, Currie, McGhee & Hiers, LLP Douglas A. Bennett, Attorney R. Briggs Peery, Attorney Michael Ryder, Attorney Richard A. Watts, Attorney Lisa A. Wade, Attorney Cristine K. Huffine, Attorney Charles E. Harris, IV, Attorney 1355 Peachtree Street, NE, Suite 300 Atlanta, Georgia Phone: Fax:
3 GEORGIA BREAKOUT SESSION Swift, Currie, McGhee & Hiers, LLP R. Briggs Peery, Moderator Michael Ryder, Speaker Douglas A. Bennett, Speaker Richard A. Watts, Speaker Charles E. Harris, IV, Speaker Cristine K. Huffine, Speaker Morning Session: 9:45 a.m. 10:10 a.m. Forms: Forms and Electronic Filing in Georgia - How to Use Them Correctly and Avoid The Bombs! 10:10 a.m. 10:35 a.m. The Posted Panel of Physicians Importance and Impact in Georgia and Reducing or Avoiding Medical Exposure and the Ethical Handling of Those Claims in Georgia 10:35 a.m. 11:00 a.m. Non-Traditional Employees and Non-Traditional Types of Injuries in Georgia Workers Compensation Claims 11:00 a.m. 11:30 a.m. Defenses of Compensability and Idiopathic Claims Afternoon Session: 12:30 p.m. 12:55 p.m. Forms: Forms and Electronic Filing in Georgia - How to Use Them Correctly and Avoid The Bombs! 12:55 p.m. 1:15 p.m. The Posted Panel of Physicians Importance and Impact in Georgia and Reducing or Avoiding Medical Exposure and the Ethical Handling of Those Claims in Georgia 1:15 p.m. 1:35 p.m. Non-Traditional Employees and Non-Traditional Types of Injuries in Georgia Workers Compensation Claims 1:35 p.m. 2:00 p.m. Defenses of Compensability and Idiopathic Claims
5 Swift, Currie, McGhee & Hiers, LLP The Peachtree s 1355 Peachtree Street, NE s Suite 300 s Atlanta, Georgia P h o n e s F a x s w w w. s w i f t c u r r i e. c o m Based on more than 50 years of representing clients in Georgia and throughout the country, Swift, Currie, McGhee & Hiers, LLP, has evolved into a law firm capable of handling all areas of civil law and litigation. With more than 85 attorneys, Swift Currie possesses the resources and abilities to tackle the most complex legal problems, while at the same time, providing its clients with individualized, prompt and cost-effective service. Our law firm has a wealth of experience across numerous practice areas and our depth of legal talent allows us to tailor such strengths to individual cases. Our firm s philosophy is to provide our clients with creative, aggressive and professional representation of their interests. We also strive to conduct ourselves in a manner consistent with the legacy of our four founding partners. With our extensive litigation background, we handle all aspects of dispute resolution and litigation for corporations, organizations and individuals throughout the United States. From routine disputes to multi-party litigation, Swift Currie has the skills and resources to achieve our client s goals. Our team of skilled litigators works closely with each client to understand the unique needs of every legal matter. By combining our legal skills and industry expertise with a common sense approach to resolution, our attorneys aggressively pursue our clients goals in the most efficient manner possible. No matter what the issue is in dispute, Swift Currie has attorneys ready to assist you. We believe we have a well-deserved reputation for high-quality legal services and dedicated attorneys. Finding creative solutions to complex problems that is our commitment to our clients.
6 DOUGLAS A. BENNETT Partner Direct Dial: Fax: Douglas A. Bennett handles general civil litigation including workers compensation, automobile litigation, products liability, premises liability and trucking litigation. Mr. Bennett is a member of the Atlanta and American Bar Associations, as well as the State Bar of Georgia. He also is a member of the Defense Research Institute and the Georgia Self Insurers Association. A frequent speaker in various practice areas, Mr. Bennett has lectured and chaired seminars for the Atlanta Bar Association and the Institute of Continuing Legal Education. He is a past member of the Executive Committee of the Workers Compensation Section of the State Bar of Georgia and served as Chairman of the Section from June 2003 to June Mr. Bennett received a Bachelor of Business Administration from the University of Georgia in He also received his law degree from the University of Georgia, cum laude, in 1980, and served on the staff of the Georgia Law Review. In 2006, Mr. Bennett received a Bachelor of Arts from Georgia State University focusing on Literature. Practice Areas Automobile Litigation Catastrophic Injury & Wrongful Death Premises Liability Products Liability Trucking Litigation Workers Compensation Professional Associations American and Atlanta Bar Associations Defense Research Institute Georgia Self Insurers Association State Bar of Georgia Education University of Georgia, B.B.A., 1976 University of Georgia, J.D., 1980 Georgia State University, B.A., 2006 Bar Admittances Georgia, 1980 Additional Information Awards and Recognitions Best Lawyers in America (1995 to date) Georgia Super Lawyer (2004 to date) AV Rated by Martindale-Hubbell. * * CV, BV and AV are registered certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale- Hubbell certification procedure s standards and policies.
7 R. BRIGGS PEERY Partner Direct Dial: Fax: R. Briggs Peery practices both workers compensation and general liability litigation defending insurance carriers and self-insureds. He is a member of the Atlanta and American Bar Associations and the State Bars of Georgia and Virginia. Mr. Peery has served as the Legal Committee Chairman for the Georgia State Board of Workers Compensation Steering Committee. He has spoken on workers compensation topics at multiple Claims and State Bar seminars as well as Georgia Chamber of Commerce, municipal, employer and selfinsured functions. Mr. Peery is also a Georgia Representative for the Steering Committee of the Florida Workers Compensation Institute and a member of the Legal Committee for the Georgia State Board of Workers Compensation s annual seminar. Mr. Peery received his law degree from the Walter F. George School of Law at Mercer University in While at Mercer, he was a member of the Moot Court Board, National Moot Court Competition and the National ABA/LSD Moot Court Competition Team. Mr. Peery graduated with a B.A. degree from Hampden-Sydney College in He also was a member of the Phi Alpha Theta, Phi Sigma Iota and Phi Delta Phi honor societies. Practice Areas Workers Compensation Subrogation Catastrophic Injury & Wrongful Death Professional Associations American and Atlanta Bar Associations State Bar of Georgia Virginia State Bar Education Hampden-Sydney College, B.A., 1983 Mercer University, J.D., 1986 Bar Admittances Georgia, 1986 Virginia, 1986 Additional Information Awards and Recognitions AV Rated by Martindale-Hubbell. * Community Involvement Atlanta Center for the Visually Impaired Board Member (2001 to date) * CV, BV and AV are registered certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedure s standards and policies.
8 MICHAEL RYDER Partner Direct Dial: Fax: Michael Ryder joined Swift, Currie, McGhee & Hiers in He practices in the workers compensation defense section of the firm. Mr. Ryder is admitted to practice in Georgia and Florida. Since 1988 he has concentrated his area of practice in workers compensation defense and employment law issues on behalf of employers and insurers. Mr. Ryder was appointed and served on the Governor s Workers Compensation Commission. He is a past member of the Board of Directors for the Atlanta Bar Association s Workers Compensation Section and the Board of Governors for the Florida Bar Young Lawyers Division. Mr. Ryder served as Editor of the State Bar of Georgia s Workers Compensation Section Newsletter and has served on numerous State Bar of Georgia committees. Mr. Ryder is the founding director of the Atlanta Bar Association Workers Compensation Section s annual Kids Chance Run, a charitable fundraiser that has been held annually since Mr. Ryder frequently lecturers on workers compensation defense strategies to employers and insurers around the country and is a speaker on Georgia Workers Compensation law at the annual Florida Workers Compensation Law Institute Educational Conference. Mr. Ryder earned his undergraduate degree and his law degree from the University of Florida, where he was a member of Florida Blue Key, Omicron Delta Kappa and Phi Delta Phi. Practice Areas Workers Compensation Employment Law Professional Associations Atlanta Bar Association The Florida Bar State Bar of Georgia Education University of Florida, B.A., 1983 University of Florida, J.D., 1987 Bar Admittances Georgia, 1988 Florida, 1992 Additional Information Awards and Recognitions AV Rated by Martindale-Hubbell. * * CV, BV and AV are registered certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedure s standards and policies.
9 RICHARD A. WATTS Partner Direct Dial: Fax: Richard A. Rusty Watts joined Swift, Currie, McGhee & Hiers in He practices in the workers compensation section of the firm. Mr. Watts was admitted to practice in Georgia in 1992 and has concentrated his area of practice in workers compensation defense and liability defense. Mr. Watts received his law degree from the Walter F. George School of Law at Mercer University where he served as Chairman of the Moot Court Board and received the Most Outstanding Oralist Award at the 1991 Florida Workers Compensation Moot Court Competition. Mr. Watts is a member of the State Bar of Georgia Workers Compensation Section. He also serves as a part-time professor at the Georgia State University Law School and School of Risk Management and Insurance, as well as Mercer University s Stetson School of Business. Mr. Watts earned his B.A. degree from the University of Florida in 1989, where he was inducted into the Florida Blue Key Leadership Honorary and served as President of the University s nationally ranked debate team. Practice Areas Workers Compensation Professional Associations State Bar of Georgia Education University of Florida, B.A., 1989 Mercer University, J.D., 1992 Bar Admittances Georgia, 1992 Additional Information Publications Co-author, New Strategic Considerations in Workers Compensation Cases Involving Undocumented Workers Co-author, The Impact of the Baby Boomer Demographic on Workers Compensation Systems Awards and Recognitions Super Lawyer Rising Star (2005) - Atlanta Magazine AV Rated by Martindale-Hubbell. * Community Involvement Mercer Law School Alumni Association * CV, BV and AV are registered certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale- Hubbell certification procedure s standards and policies.
10 LISA A. WADE Partner Direct Dial: Fax: Lisa A. Wade joined Swift, Currie, McGhee & Hiers, LLP, as a partner in She is responsible for a practice that consists of the defense of workers compensation claims and general insurance defense litigation. Ms. Wade has worked on cases involving premises liability, automobile accidents and uninsured motorist defense litigation, product liability, coverage issues, slips and falls and property damage cases. In the area of workers compensation, Ms. Wade represents companies that are both self-insured and commercially insured and has defended claims of all types. In her capacity as approved counsel by the Atlanta Board of Education since 1991, she has responded to various employment practice issues as well as defended several of the Board s workers compensation claims. She is currently lead defense counsel for the City of Atlanta s workers compensation matters. Ms. Wade is a member of the American, Gate City and Atlanta Bar Associations, the State Bar of Georgia, the Georgia Association of Black Women Attorneys, the Atlanta Claims Association and the Georgia Defense Lawyers Association. She is currently the state liaison for the Defense Research Institute s Workers Compensation Committee and is also the vice chair of the outreach subcommittee of the Diversity Committee. In the State Bar of Georgia, Ms. Wade is a member of the Workers Compensation Section and the Litigation Section. She served as chairperson of the Board of Zoning Adjustment for the City of Atlanta from , and was a member of the Board since She is a past Chairperson of the Workers Compensation Section of the State Bar of Georgia. She was also appointed to a fifth term on the Fee Arbitration Committee of the State Bar of Georgia, and was a member of Leadership Atlanta s Class of Ms. Wade has served as the legal advisor to the Atlanta Board of Education s Civil Service Commission and has served as a hearing officer for cases involving the termination of certificated employees. In 2005 and 2006, Ms. Wade was named a Georgia Super Lawyer Rising Star by Atlanta Magazine. Ms. Wade received her undergraduate degree in 1988, from Brown University in Providence, Rhode Island, and her law degree in 1991, from the University of Georgia School of Law. Practice Areas Workers Compensation Professional Associations American, Atlanta and Gate City Bar Associations Atlanta Claims Association Defense Research Institute Georgia Association of Black Women Attorneys Georgia Defense Lawyers Association Georgia Self-Insurers Association Junior League of Atlanta Leadership Atlanta State Bar of Georgia Education Brown University, A.B., 1988 University of Georgia, J.D., 1991 Bar Admittances Georgia, 1991 Additional Information Awards and Recognitions Georgia Super Lawyer Rising Star ( ) AV Rated by Martindale-Hubbell. * Community Involvement Junior League of Atlanta Leadership Atlanta Cascade United Methodist Church Kids Chance of Georgia, Inc. Languages Spanish * CV, BV and AV are registered certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedure s standards and policies.
11 CRISTINE K. HUFFINE Partner Direct Dial: Fax: Cristine K. Huffine joined Swift, Currie, McGhee & Hiers in She practices primarily in the workers compensation section of the firm. Prior to joining the firm, Ms. Huffine practiced workers compensation law (both in Georgia and Pennsylvania), employment law and general insurance defense. Ms. Huffine graduated, cum laude, from Pennsylvania State University with a B.S. in 1992, and the Dickinson School of Law with her J.D. in While at law school, Ms. Huffine participated on the Trial Moot Court Board for two years and received the Excellence for the Future Award based upon her academic credentials. Ms. Huffine is a member of several professional organizations, including the Defense Research Institute, the State Bar of Georgia and the Pennsylvania State Bar. She is a Board Member with the Atlanta Claims Association, serving as the Chair of the Legislative Committee. Her community involvement includes service with the Family and Children Services of Cobb County. While practicing in Pennsylvania, she participated in a precedent-setting products liability case. Her previous experience also included clerking with The Honorable Sheryl Ann Dorney for the Court of Common Pleas, 19th Judicial District in York, Pennsylvania, and interning at the Pennsylvania Attorney General s Office in the Tort Litigation Section. In Georgia, Ms. Huffine has successfully defended numerous medically intensive workers compensation claims, including occupational disease cases and catastrophic claims. Practice Areas Catastrophic Injury & Wrongful Death Employment & Discrimination Insurance Coverage Workers Compensation Professional Associations Atlanta Claims Association Board Pennsylvania State Bar State Bar of Georgia Education The Pennsylvania State University, B.S., 1992 Dickinson School of Law, J.D., 1996 Bar Admittances Georgia, 1998 Pennsylvania, 1997 Additional Information Awards and Recognitions Excellence for the Future Award Community Involvement Family and Children Services of Cobb County
12 CHARLES E. HARRIS, IV Partner Direct Dial: Fax: Charles E. Harris, IV joined Swift, Currie, McGhee & Hiers, LLP, in Mr. Harris has concentrated his practice in the area of workers compensation defense, representing employers and insurers throughout Georgia. Mr. Harris has written and presented on a wide variety of topics, ranging from Medicare Set Asides, light duty return to work issues, statutory compliance and financial considerations for employers and insurers. Mr. Harris frequently presents to employers and insurers throughout the Southeast on workers compensation defense strategies and serves as editor of the firm s quarterly publication, The First Report, which focuses on providing employers and insurers with updates and recommendations on workers compensation issues. Practice Areas Workers Compensation Professional Associations Atlanta Bar Association State Bar of Georgia Education Furman University, B.A., 2000 University of Georgia, J.D., 2003 Bar Admittances Georgia, 2003 Mr. Harris received his J.D. from The University of Georgia School of Law. Mr. Harris served as a Notes Editor for the Georgia Journal of International and Comparative Law. Mr. Harris received his undergraduate degree from Furman University. As an undergraduate, he was a letterman on the Varsity Tennis Team. Prior to joining Swift Currie, Mr. Harris practiced in the area of workers compensation with another Atlanta law firm. He is admitted to practice in the State of Georgia. He is member of the State Bar of Georgia, Workers Compensation Section and the Atlanta Bar Association.
13 IMPORTANT GEORGIA BOARD FORMS WC-1 Employer s First Report of Injury or Occupational Disease WC-2 Notice of Payment/Suspension of Benefits WC-3 Notice to Controvert WC-4 Case Progress Report WC-6 Wage Statement WC-14 Notice of Claim WC-102 Request for Document to Parties WC-102d Motion/Objection to Motion WC-104 Notice to Employee of Medical Release to Return to Work with Restrictions or Limitations WC-108b Attorney Withdrawal/Lien WC-200a Change of Physician/Additional Treatment by Consent WC-200b Request/Objection for Change of Physician/Additional Treatment WC-205 Treatment or Testing by Authorized Medical Provider WC-240 Notice to Employee of Offer of Suitable Employment WC-243 Credit WC-R1CATEE Employee s Request for Catastrophic Designation Note: Up-to-date forms and their versions for EDI submission, will be available and explained during the Georgia breakout sessions. If you have questions or would like more information regarding Georgia forms, please contact: Mike Ryder - Swift, Currie, McGhee & Hiers Direct
15 Reducing and avoiding medical exposure is the key to keeping claims expenses down in Georgia, where claimants are entitled to lifetime medical benefits for accepted, indemnity claims. In order to contain costs, claims handlers must aggressively investigate and defend claims as well as control the medical through the proper use of the panel of physicians, independent medical evaluations (IME), functional capacity evaluations (FCE), the peer review process, changes in treating physicians and enforcing compliance with medical care. Finally, claims handlers must have knowledge of Georgia workers compensation law which does not recognize apportionment in most instances and the concept of maximum medical improvement (MMI) has no real impact on the claim. Panel of Physicians Case law has shown that failure to maintain a panel of physicians may also result in the employer s inability to rely upon the statute of limitations in defending a claim. In Georgia Institute of Technology v. Gore an employee neglected to file a claim for workers compensation benefits within one year after his on-the-job injury. The employee had not received any medical treatment furnished by the employer. The claimant argued, however, that because a panel of physicians was not posted, he was free to select any physician at the expense of the employer. Furthermore, that medical care qualified as remedial treatment furnished by his employer. Consequently, his claim was not barred by the statute of limitations under James B. Hiers, Jr. & Robert R. Potter, Georgia Workers Compensation Law and Practice, (5 th ed. 2007) (citing 167 Georgia Institute of Technology v. Gore, Ga. App. 359, 306 S.E.2d 338 (1983)). The requirements of a standard panel of physicians are set out in O.C.G.A (b)(1). A valid panel of physicians must contain the names, addresses and phone numbers of at least six unassociated physicians or clinics that are reasonably accessible to the employee. The panel may not contain more than two industrial clinics (like Caduceus Occupational Medicine, Concentra, Choice Care, etc.) and must contain one minority physician (ethnic minority or woman) and one orthopaedic surgeon. Always put more than six doctors on your panels. Having the minimum number just invites problems. If the information on only one provider is inaccurate you are in trouble. By having eight, you have some breathing room in case the information on one or two of the providers is incorrect. Also, have employers check the validity of the providers information on a regular basis. Do not forget, doctors do move around, retire and yes, even die! Make sure the names, addresses and phone numbers of the panel providers are valid and current. Also, make sure they still accept workers compensation. This may sound obvious, but it is a question which is frequently overlooked. Have some understanding about the reputation of the doctors on the employer s panels. If you do not know the doctor, ask around, find out if a doctor has a reputation for taking everyone out of work no matter what the injury, or frequently offering expensive, invasive procedures before first offering conservative treatment.
16 Under O.C.G.A (c) the employer must post the panel in prominent places on the business premises and also take all reasonable measures to ensure employees understand the function of the panel and their right to select a physician. Reasonable measures includes not just posting the panel, but posting it in a prominent, visible location, such as in a break room or above a time clock. A panel does no good if it is posted in an office or hallway or any place where most employees do not go on a regular basis. Place the panel in the initial materials given to employees at orientation and get employees to sign an acknowledgment indicating they have seen the panel and understand its function. It is also a good idea to review the function of the panel in safety meetings and obtain an updated signature on the acknowledgment on a yearly basis. The signed acknowledgment should be kept in each employee s personnel file. This allows the employer/insurer to prove, without question, that an injured employee reviewed and understood the panel of physicians prior to any accident. If the employer has Hispanic employees, get the posted panel in Spanish as well as English and make sure the employer has an acknowledgment written in Spanish available for their signature. But the responsibility does not stop there. The employer must also take all reasonable measures in giving the employee appropriate assistance in contacting panel providers. Be sure someone sits down with the employee at the time of the accident, if possible, and explain how the panel works and assist them in contacting a provider and getting an appointment. The employer could go one step further and have employees sign or initial their choice of provider from the panel at the time of their injury. This prevents any argument as to whether the claimant was shown the panel of physicians at the time of his injury or whether the claimant was allowed to make his own choice of provider from the panel. Under O.C.G.A (b)(1) physicians from the panel who have been selected by the claimant as their authorized treating physician may arrange for any consultation, referral and extraordinary or other specialized medical services as the nature of the injury shall require without prior authorization from the board. This section goes on to note, however, that referral physicians are not permitted to arrange for any additional referrals. Pay close attention here. Frequently a referral physician will jump in and start referring an employee to other doctors for further evaluation and treatment. This can increase the cost of the claim not only due to possible unnecessary referrals, but also because they may be referring the employee to providers who are not employer friendly. Claimant s counsel will use this to their advantage, speaking up about improper referrals when it hurts them and remaining silent when it is to their advantage to do so. WAYS TO MANAGE YOUR MEDICAL EXPOSURE Send the Claimant for an Independent Medical Examination (IME) The employer/insurer has the right to send the claimant for an IME, pursuant to O.C.G.A (a). Under O.C.G.A (a) after an injury, and as long as an employee is claiming compensation, the employee must submit to a physical examination, which has been requested by the employer/insurer, to any physician or surgeon designated and paid by the employer. Such examination may include physical, psychiatric and psychological examinations. An IME can be useful for an employer/insurer in reducing the cost of a claim in that it can counteract negative medical, including a claimant requested IME. This is especially true when an employee has received treatment from non-panel physicians. The employer/insurer should choose the IME doctor carefully, however. The Board is reluctant to allow multiple IMEs with different physicians regarding the same body part or injury repeatedly in a short period of time. This means doing your homework about the IME physician prior to scheduling and giving notice of an appointment. Make sure you know the doctor s reputation, check the doctor s certifications and determine whether there have been any violations
17 or reprimands against the doctor by checking the American Medical Association website (www.amaassn.org) or the website for your state licensing board. Georgia: Florida: With respect to proper scheduling and notice to the claimant and/or his attorney, make sure the claimant is provided at least ten days advance written notice unless you receive a written agreement from claimant s counsel to waive the ten-day advance notice. Additionally, be sure to provide advance payment of the mileage to and from the appointment to the claimant, or to provide transportation to and from the appointment, if necessary. Also make sure a translator is available if required. Be sure to write to the doctor prior to the scheduled IME appointment, providing all necessary medical records and diagnostics for the doctor s review prior to the appointment. A canceled or missed appointment due to nonappearance can be expensive, so make sure to confirm the appointment with the claimant s attorney and the IME doctor at least 48 hours prior to the appointment, also making sure to confirm the doctor has received the prepayment, if required. The failure to follow these simple measures will result in increased costs. Utilize Functional Capacity Examinations O.C.G.A (a) provides that the claimant, following an injury and so long as he claims compensation, shall submit to an examination by a duly qualified physician or surgeon. A functional capacity examination (FCE) is a powerful tool in keeping the costs down in many cases as it gives insight into the claimant s physical capabilities and his motivation and willingness to physically improve and return to work. Although a claimant may not exhibit the desired physical abilities during an FCE, he might exhibit malingering or poor effort, which may help to discredit his subjective complaints. Send the Medical Records for Peer Review The term peer review in this situation refers to having another physician review the medical records of the physician or treatment in question and render his opinion, based on the medical records provided. Having a doctor who is not connected with the case review the medical treatment being provided can frequently provide some clarity when determining whether a course of treatment or recommended procedure is reasonable and necessary. The peer review physician s opinion can then be utilized to help support a Notice to Controvert or a request for change in physicians, both of which can reduce the long-term costs of a claim. Peer reviews, as explained by Board Rule 203, are especially useful when medical charges are disputed because they are not the usual, customary and reasonable charges. The employer/insurer may file a request for peer review with an authorized peer review organization within 30 days of receipt of the disputed charges. The request for peer review must be served on all parties. The peer review committees currently approved and authorized by the Board for this express purpose are: Medical Directors Solutions, LLC; Georgia Psychological Association; Georgia Chiropractic Association, Inc.; and Appropriate Utilization Group, LLC. These types of findings, when reviewed by the authorized treating physician, may help to provide concrete, objective evidence on which to base a release to return to work, thus reducing the cost of the claim. It should be noted, however, that an FCE must be prescribed by the authorized treating physician and it cannot be utilized as an IME pursuant to O.C.G.A (a). FCEs are usually performed by an individual trained in physical therapy, not a physician or surgeon. Request a Change of Physician if Necessary Often in workers compensation cases the treatment and/or testing recommended or performed by a physician is not necessary or appropriate for the claimant s condition. The doctor may not be the best specialist to handle a particular injury, resulting in excessive testing and referrals. Many times
18 the doctor may simply be too liberal in keeping a claimant out of work despite a lack of objective findings. In these cases, a change of physician can be a very helpful tool in controlling medical costs. At the same time, a change in physician can still ensure the claimant is receiving appropriate and necessary medical treatment which will be beneficial in providing relief, affecting a cure and, hopefully, returning the claimant to suitable employment in the long run. The process and procedure for achieving a change of physician is explained in O.C.G.A (b) and Board Rule 200. If possible, it is best to try to reach a change of physician by Agreement prior to filing a motion or litigating this issue. Many times, however, this is not possible, and in those cases it can still be cheaper in the long run to litigate the issue of a change of physician. Failure to do so can result in excessive medical costs for unnecessary and inappropriate treatment. At the same time, you are continuing to pay a physician who persists in keeping the claimant out of work when he should be released. O.C.G.A (b) allows the employer/insurer or the claimant to file a request for a change of physician with a WC-200a. An accompanying brief should always be filed along with the Form WC-200a delineating the reasons that a change of physician is being sought. Before seeking a change, however, it is also a good idea to thoroughly investigate the physician to whom you are seeking a change. This investigation could include a possible IME to find out the physician s diagnosis and treatment plan. Also, it is imperative that you verify with the physician to whom you are seeking a change that he will agree to accept the claimant as a patient should the State Board grant your request. Too many times a change in physician will be granted, only to have the doctor refuse to accept the claimant as a patient. The opposing party then has 15 days to respond to your request for a change of physician and the State Board will either grant or deny the request. On occasion, the State Board may grant a request for change of physicians, but may designate a different physician to become the authorized treating physician. Decisions of the Board with regard to change of physician issues can be appealed to the Appellate Division, should the Board s decision be unacceptable to either side. Enforce Compliance with Medical Care The employer and insurer are required by statute to provide medical benefits, which include treatment, surgical care, medical supplies, prosthetic devices and aids which in the judgment of the State Board appear likely to effect a cure, give relief, or restore the employee to suitable employment. O.C.G.A (a). In return, so long as the employee is receiving compensation, he should attend medical appointments at reasonable times, and if he refuses to do so, or otherwise obstructs medical treatment recommended by the authorized treating physician, upon order of the board his or her right to compensation shall be suspended. O.C.G.A (c). The employee s benefits may not be unilaterally suspended just because he misses a medical appointment or is otherwise uncooperative. Rather, the employer and insurer should file a motion requesting an interlocutory order allowing the suspension of income benefits. As a practical matter, the employer must be able to show a pattern of non-compliance or multiple missed medical appointments before the board will issue an order allowing the suspension of income benefits for non-compliance with medical care. Keep Up with the Medical One of the best ways to help keep medical costs down is to stay focused on the claimant s medical treatment. By making sure you receive regular medical record updates, and by reviewing these updates in a timely manner, you will be better able to ensure the medical treatment which is being provided is necessary, reasonable and appropriate. Keeping up with the medical also ensures you will know and be able to respond immediately if the claimant suddenly reports new symptoms or complaints. These new complaints could mean the claimant has had a new accident or injury or
19 returned to work elsewhere. Thus, you will be better equipped to file timely controverts when necessary. Additionally, a review of the medical records will often offer great insight into the claimant s activities, capabilities and work status. Monitoring the claimant s work status will support the timely preparation of a WC-104 or a WC-2 based on a full duty release, which reduces the long-term exposure and payout on a claim. Also, many times a physician will actually note a claimant has returned to work for another employer, even though the claimant is supposedly incapable of working and receiving income benefits. A failure to monitor medical records for a full duty release or subsequent employment could result in significant overpayment of income and medical benefits. Apportionment? In many cases, the employee has a preexisting condition, such as arthritis, that is aggravated by a job injury and results in disability. The aggravation of a preexisting condition is compensable, and the employer and insurer must pay income benefits when the accident causes the disability as well as all medical expenses that result from the aggravation. Unfortunately, there is no apportionment of the disability or of the medical expenses. Therefore, there is no reason to ask the treating physician whether the injury is the major contributing cause of the disability. In Georgia, you take your claimant as you find them, and even if the employee has a serious preexisting disease, if he was working until the job injury, it is an easy causal connection between the job injury and the disability. Maximum Medical Improvement? Another important term in the workers compensation systems in other states is maximum medical improvement (MMI). In some states, when an employee reaches MMI from the injury, the employer may suspend or reduce the amount of income benefits. Unfortunately, MMI has no such meaning in Georgia. In fact, it has minimal legal import. In Georgia, even if the authorized treating physician (ATP) indicates the employee is at MMI, the employer must still continue to pay TTD if the employee has work restrictions that the employer is unable to accommodate. Moreover, there is no legal requirement that the employee actually look for work in this circumstance. Similarly, even though the ATP opines that the employee is at MMI, it does not mean he is no longer entitled to medical treatment. What you really need the doctor to state is the employee has recovered from the job injury and he is back to his baseline, or he is back to the preexisting condition he had prior to the job injury. In other words, the effect of the aggravation has subsided. In this instance, it is possible to request a hearing to cut off both the income and medical benefits since he has recovered from the job injury and any medical treatment he needs is due to the preexisting condition. Aggressive Claims Investigation After making sure you have a good, valid posted panel your employees understand, the next way to keep medical costs down is to avoid accepting a questionable claim in the first place. A proper investigation as well as the filing of a timely controvert, if appropriate, can go a long way in reducing the costs of a claim. An investigation should include speaking to witnesses regarding details of the alleged accident and injury. It is also essential to review the employee s personnel file and speak to coworkers and supervisors to determine whether the claimant had a preexisting condition because if he does, certain defenses may be available to the employer. The use of a post-hire health questionnaire is essential to preserve defenses based on the employee s prior physical condition. An important defense to the compensability of claims in Georgia is the employee s willful misrepresentation of his physical condition. In 1989, the Georgia Supreme Court established this defense in the case of Georgia Electric Company v. Rycroft, 259 Ga. 155, 378 S.E.2d 111( 1989). The court held a false statement in an employment application or health questionnaire will bar benefits if the following factors are present: (1) the employee knowingly and willfully made a false
20 representation as to his physical condition; (2) the employer relied on the false representation and the reliance was a substantial factor in his hiring; and (3) there is a causal connection between the false representation and the job injury. To establish the causal connection, the job injury must involve the same body part as the prior physical condition that was the subject of the misrepresentation. The Rycroft defense is most effective where the prior physical condition that was not disclosed was serious, such as prior surgery, disability, an impairment rating or involved a prior workers compensation claim that was not disclosed. Hospital checks and index bureau checks are also useful to determine any prior injuries, medical treatment or hospitalizations, and to ensure the claimant has not reported any recent motor vehicle accidents or other insurance claims which might relate to the alleged injury. Limitations on Physician Contact Board Rule 200.1(a)(1)(iii) allows direct employees of the employer, insurer and third-party administrator to communicate with the ATP to assess, plan, implement, coordinate, monitor, and evaluate options and services relative to an injured employee s condition and/or vocational needs. This means an employer representative or the adjuster may contact the doctor and his staff by telephone, fax, , etc. to clarify medical issues and to question the diagnosis, as well as the doctor s opinion on return to work issues. This allows the employer representative or adjuster to forward surveillance videos to the doctor and meet with the doctor regarding a claim. In the past, defense attorneys have frequently scheduled meetings with the doctor or have forwarded surveillance video to the doctor without the employee or the employee s attorney s knowledge in an effort to obtain favorable opinions from the physician. This type of ex parte contact with the doctor by the defense attorney is now restricted by the holding in McRae v. Arby s Restaurant Group, a Court of Appeals decision that was issued on December 1, In this case, the claimant sustained a work-related injury in February 2006, for which she received income benefits. She executed a WC-207 release for medical records and information. A few years later, counsel for the employer tried to schedule a private consultation with the claimant s treating physician without the claimant being present. The doctor had issued a 65% impairment rating to the body as a whole. The doctor refused to meet with the defense attorney absent express permission from the claimant. The Administrative Law Judge granted the employer s Motion seeking an Order compelling the claimant to sign the authorization allowing the doctor to meet with the defense attorney privately. The Court of Appeals reversed the ruling in a close 4-3 majority opinion. The Court of Appeals held that while a workers compensation claimant waives his medical privacy regarding information about the injury at issue and any related medical history, the claimant is not required to authorize the ATP to talk with the attorney for the employer and insurer ex parte. This means that attorneys for the employer and insurer can no longer write to or meet with the ATP without the employee s knowledge. If the attorney wants to communicate with the doctor in writing, he must copy the claimant s attorney or the claimant if he is not represented. There can be no ex parte meeting whatsoever unless the employee consents. Keep in mind this decision does not restrict the right of the employer representative or the insurance adjuster to contact the doctor regarding medical or return to work issues of any kind. This decision is currently pending in the Georgia Supreme Court. We probably have not heard the last word on this issue.
21 NON-TRADITIONAL EMPLOYEES AND NON-TRADITIONAL INJURIES IN GEORGIA By: Charles E. Harris, IV Fundamental to the workers compensation system is the principle that there must be an employment relationship between the injured individual and the entity from whom benefits are sought. The employee bears the burden of proof to demonstrate an employment relationship. 1 The determination of whether an individual is an employee is a question of fact, rather than law, meaning the Appellate Division will review an ALJ s findings based on a preponderance of the evidence standard. 2 If an appeal on the issue extends to the superior court or beyond, the any evidence rule would apply. 3 The term employee is to be liberally construed in favor of the claimant. 4 The Governing Statute O.C.G.A provides definitions of 1) the Board, 2) an employee, 3) an employer, and 4) an injury or personal injury. This is the natural place to start in determining whether an individual injured was an employee. The statute defines an employee as every person in the service of another under any contract of hire or apprenticeship. 5 Notwithstanding this succinct rule, the definition of an employee under the Georgia Workers Compensation Act extends for nearly one full page. The definition of an employer is also less than clear under the Act, as that definition section can only provide examples of who is, and is not, an employer. 6 It is by no means an exhaustive list. (1) Contract of Employment The definition section of the Act requires a contract to be formed between the parties for there to be an employment relationship. 7 The Act does not require a written contract, but instead allows for oral contracts. Also permissible are implied contracts in addition to those with express terms. The Georgia Court of Appeals has held that a contract of employment is formed even if there was not a formal acceptance, so long as the claimant begins performing the duties of the job. 8 (2) Right of Control Once there is a contractual relationship established, the next prerequisite is that there must be a right of control by the employer. 9 The most common context for disputes is when determining whether an individual is an employee or independent contractor. Even in circumstances where there is strong evidence of an independent contractor relationship, rather than an employment relationship, the existence of an alleged 1 Fidelity & Cas. Co. v. Windham, 209 Ga. 592, 74 S.E.2d 835 (1953). 2 Goolsby v. Wilson, 150 Ga. App. 611, 258 S.E.2d 216 (1979). 3 Golosh v. Cherokee Cab Co., 226 Ga. 636, 176 S.E.2d 925 (1970). The Any Evidence Rule means that, so long as there is any competent and credible evidence to support the Board s findings, an appellate court cannot substitute its own judgment for that of the Board s and must instead affirm the findings. See Moffitt Constr., Inc. v. Barnes, 263 Ga. App. 175, 587 S.E.2d 293 (2003). 4 Malcom v. Sudderth, 98 GA. App. 674, 106 S.E.2d 367 (1958). 5 O.C.G.A (2). 6 O.C.G.A (3). 7 O.C.G.A (2). 8 Bituminous Cas. Corp. v. Humphries, 91 Ga. App. 271, 85 S.E.2d 456 (1954). 9 Brewer v. Pacific Employers Ins. Co., 95 Ga. App. 270, 97 S.E.2d 643 (1957).
22 employer s control and direction over the time, manner and method of the work to be performed tends to demonstrate an employment relationship. 10 (3) Payment It was long assumed that, for an employment relationship to be established, there would need to be payment or an expectation of payment. However, in a 1997 decision of the Court of Appeals of Georgia, that assumption was successfully challenged. In Housing Authority of the City of Cartersville v. Jackson, 11 the court found that an unpaid individual, who had no expectation of payment, was nevertheless an employee under the Act. The court asserted there were three tests in making this determination: (1) whether the employer has the right to control the time, manner and means of executing the work; (2) whether the employer had the right to discharge the individual; and (3) whether the employer received a benefit for the services. The court in Jackson stated the claimant was subject to both control and discharge by the employer. In addition, the employer would have had to pay nearly $50, for the services rendered. These factors led the court to conclude the claimant s injuries were compensable under the Act. Notwithstanding the Jackson case, there is still a strong argument to be made that the lack of payment renders the individual a gratuitous worker not subject to the Act. Of particular note, the statute provides no mechanism for determining the individual s average weekly wage for unpaid work. The manner of payment need not necessarily be in cash. Of note, Board Rule 260(a) lists a variety of other benefits which are utilized in determining an employee s average weekly wage. The Court of Appeals of Georgia has also held that room and board can be sufficient payment necessary to satisfy this requirement. In Booth v. Essex Ins. Co., the court found that an individual, whose sole source of remuneration was residence in an alcohol and drug rehabilitation facility, received payment by virtue of that residence, and thus was an employee (having met the other criteria). 12 Excluded Employment The Act specifically limits its applicability to businesses that have three or more employees (1) regularly in service (2) in the same business (3) within the state. An employer can elect to have coverage nothwithstanding this limitation. An employer s election to have coverage is usually designed to take advantage of the exclusive remedy provision barring tort claims. The regularly in service clause requires a showing by the employee (who has the burden of proof) that there were three employees at one time. 13 However, the employee need not demonstrate there were the requisite number of employees on the date of the accident, but rather through a reasonable period of time. 14 The requirement that the employees be in the same business means that an injured worker cannot use employees from two separate businesses owned by the employer to come up with the aggregate total needed to satisfy the statute. However, evidence can be used to demonstrate that an individual with a tangential relationship to one business can be included under certain circumstances. 15 Other individuals statutorily excluded from the Act include farm laborers, railroad workers, domestic servants, and those employees conducting work not in the usual course of the employer s business. 16 The Court of Appeals of Georgia has also created other exceptions including the circumstance in which an 10 Atlas Constr. Co., Inc. v. Pena, 268 Ga. App. 566, 602 S.E.2d 151 (2004) Ga. App. 182, 486 S.E.2d 54 (1997) Ga. App. 542, 498 S.E.2d 528 (1997). 13 Fowler v. Gilmer County. Commissioners of Roads and Revenues, 164 Ga. 1, 294 S.E.2d 708 (1982). 14 McDonald v. Seay, 62 Ga. App. 519, 8 S.E.2d 796 (1940). 15 Cox v. Advoni, 222 Ga. App. 413, 474 S.E.2d 290 (1996). 16 O.C.G.A (a).
23 individual is hired for an illegal purpose (i.e. to commit a crime). In that circumstance, injuries sustained would not be compensable under the Act. An applicant for a job who sustains an injury before commencing his employment is generally not entitled to benefits, because an employment relationship has yet to be established. Similarly, terminated employees would also not be entitled to benefits since the contract of employment would have ended. However, the facts and circumstances of each case must be taken into account since there can be a dispute over whether the termination was communicated and an employee s activities post-termination may still be of benefit to the employer. Sole proprietors and partners are generally excluded from coverage. However, so long as the sole proprietor or partner is actively engaged in the operation of the business and make an affirmative election to be included, they can be covered under the Act. 17 Corporation officers or a member of a limited liability company, by contrast, must make an election to be exempt from coverage. 18 Independent Contractors Perhaps more than any other area, the issue of whether an individual is an independent contractor or employee has been the subject of considerable litigation. An independent contractor has no right to recover workers compensation benefits. However, there are exceptions to this rule. It is also worth noting that determining whether an individual is an independent contractor is usually not established using one particular fact, but usually is the result of a review of multiple factors. The Act has codified its definition of an independent contractor relationship. Under O.C.G.A (e), three factors are used to determine whether an individual is an independent contractor as opposed to an employee. First, there must be a contract to create an independent contractor relationship. Again, the contract can be oral or written and can be either implied or express. The second requirement for there to be a finding of an independent contractor relationship is that the individual controls the time, manner and method of the work to be performed. Finally, if there is a set price charged for compensation as opposed to a salary or hourly pay, that is evidence of an independent contractor relationship. One point of clarification with regard to the right of control is necessary. In Golosh v. Cherokee Cab Company, 19 an issue was raised with regard to the right to control the time, manner and means of performing work. In that case, the question was not whether the individual exercised control over the work but rather whether the alleged employer had the right to control the time, manner and method of performing work. Of note, so long as the alleged employer has the right to control the time, manner and method of the work, the question of whether he actually exercises that right is not relevant. For example, if a subordinate is given great discretion on how to perform their job, that would indicate to many that they had the right to control the time, manner and method of the work. However, if the employer retained the ultimate authority over the subordinate s functions, the relationship is an employment one. While the statute has laid out three very specific areas to look at in determining whether an individual is an independent contractor or an employee, the common law has added many more factors. One factor is the length of work performed by the individual for that employer. If the length of the project is of short duration, or there is a definitive beginning and end to the work to be performed, it is more likely an independent contractor relationship. If the individual furnishes his own tools and equipment, if the work to be performed requires significant levels of skill, or if the individual sets his own hours, these would also be indicative of an independent contractor. If the parties had separate businesses, no taxes were withheld, or the individual worked for several other employers simultaneously, or if there is a provision of no additional work without additional pay, these likewise evidence an independent contractor relationship. In contrast, if the 17 O.C.G.A O.C.G.A Ga 636, 176 S.E. 2d 925 (1970).
24 alleged employer has the ability to control the individual s subordinates, that would demonstrate an employment relationship. In the end, the Board will look closely at the asserted employer s ability to control the time, manner and place of the work to be completed in determining whether an employment relationship exists. There are several occupations which are statutorily deemed independent contractors. Those include product resellers, agricultural service providers, owner-operators, a carrier of printed materials and real estate brokers. The one common prerequisite in each of these cases (except for an owner-operator 20 ) is the existence of a written contract specifying that all services are to be provided as an independent contractor. 21 Employment by Estoppel If an insurance company issues an insurance policy to an employer covering him for workers compensation claims, and that employer is not subject to the Act, the insurer may not later deny coverage on the grounds that the employer was not subject to the Act. 22 This does not prevent the insurance company from asserting all other potential defenses available to it under Title However, an insurer cannot derive the benefit of issuing a policy and later asserting it does not have to pay because the employer did not need to buy it. We often see employment by estoppel where a contractor does not purchase insurance but enters into an agreement with an owner to ensure coverage. In Murph vs. Maynard Fixture, Inc., 23 this was at issue. We also see an employment by estoppel issue when premiums are issued based on earnings of an individual. In addition, the Board can find employment by estoppel such that an employer is estopped from asserting an otherwise valid coverage defense when ordinarily non-covered workers have fees removed to cover premiums. If those individuals are losing compensation under the premise that they are covered for workers compensation, employment by estoppel can be asserted by the employee. There is also the theory of equitable estoppel, which generally holds that when one is lead to act or refrain from acting based on the representations of an individual, the individual making the representation will be estopped from denying coverage. 24 For example, if an alleged employer tells someone that they could be covered for workers compensation and that individual is injured, the alleged employer would be estopped from asserting a coverage defense so long as it can be proven he made the statement and that the injured worker detrimentally relied on the statement. Prison Inmates O.C.G.A (2) states that [i]nmates or persons participating in a work release program, community service program or similar program as part of the punishment for a municipal ordinance [ ] or a county ordinance or a state law shall not be deemed to be an employee while participating in work or training [ ]. Although the language of the statute seems relatively straightforward, there was some disagreement about how it would play out. The issue of the clause as part of the punishment was considered a bit vague. The argument was that, since the worker could exercise some control over what he chose to do during his incarceration, his voluntary choice temporarily removed him from the incarceration context. These issues were raised in Clarke v. Country Home Bakers. 25 In Clarke, the claimant experienced an accident while working at a bakery. He asserted that he should be considered an employee because his involvement was completely voluntary. The courts disagreed, finding that notwithstanding his ability to make some choices about his activities during incarceration, he remained an inmate. The Department of 20 An owner operator s status as an independent contractor is statutorily prescribed by O.C.G.A O.C.G.A (a) & (d). 22 O.C.G.A (b) Ga. App. 483, 555 S.E. 2d 845 (2001). 24 Medders vs. Smith, 245 Ga. App. 323, 537 S.E.2d 153 (2000) Ga. App. 302, 669 S.E.2d 177 (2008).
25 Corrections could have exercised its discretion to end his employment with the bakery at any time. Thus, he fell under the exclusion to employment for inmates. Borrowed Servants The borrowed servant doctrine involves the situation where an employer loans an employee to another employer, with the latter becoming an employer for the occasion although he may remain in the general employ of his employer. 26 For the doctrine to apply, the special master (borrowing employer) must have complete control of the individual for the occasion, the general master (loaning employer) must have no such control, and the special master must have the exclusive right to discharge the individual, to put another in his place or put him to some other work. 27 These three factors must be present only at the time of injury, and not at all times during the employment. 28 Issues relating to the borrowed servant doctrine often arise when dealing with the exclusive remedy provision. Often, when a loaned employee files a personal injury claim against the party to whom they are loaned, the borrowing company will assert a defense to the tort claim based on the exclusive remedy provision. Even if the loaning company takes responsibility for the workers compensation claim, the exclusive remedy provision would bar the tort claim against the borrowing company if the prerequisites of the borrowed servant doctrine were to apply. Part-Time Employees Part-time employees are covered under the Act. In fact, even casual employees or those hired for a brief period are covered under the Act. The issue which arises from part-time employees or casual employees is whether there is concurrent employment. There are two types of concurrent employment, similar and dissimilar. If the employee has two employers, the courts will look at the nature of the employee s activities, rather than the nature of the employers businesses in determining whether the jobs were similar. 29 When the jobs are deemed similar, and the employee is disabled from both jobs as a result of the injury, the wages from both jobs are to be used in calculating a pre-injury average weekly wage. By contrast, when the jobs are dissimilar, there is no need to use the wages of the concurrent dissimilar employment, but the employee s return to work in the concurrent dissimilar employment cannot be used to support a claim for a change in condition for the better. NON-TRADITIONAL ACCIDENTS AND INJURIES The general test as to whether an accident or injury is compensable under Georgia Workers Compensation law is did the accident or injury arise out of and in the course of employment? Many times this may be a simple question which is easy to answer given the facts of a claim. However, sometimes we are presented with a case where the facts create a much more complicated scenario. In these situations, we often have to make a close call. The discussion below addresses how best to evaluate some of these fact-specific scenarios and how to apply the proper rationale to make these close calls. Recreational Injuries & Injuries During After-Work Activities Recreational or social activities are within the course of employment when: (1) they occur on the premises during a lunch or recreation period as a regular incident of employment; or 26 Food Giant, Inc. v. Davison, 184 Ga. App. 742, 362 S.E.2d 447 (1987). 27 Id. 28 Six Flags Over Ga., Inc. v. Hill, 247 Ga. 375, 276 S.E.2d 572 (1981). 29 St. Paul Fire & Marine Ins. Co. v. Walters, 141 Ga. App. 579, 234 S.E.2d 157 (1977).
26 (2) the employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of employment; or (3) the employer derives substantial direct benefit from the activities beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life. 30 In these types of cases, several variables must be considered: (1) Did the accident occur on or off the employer s premises and was it sustained during or outside of working hours? (2) To what extent was the team organized on the employer s initiative? (3) What, if any, is the amount of the employer s contribution, in money or equipment, to the team? (4) Did the employer derive any benefit from the employee s participation on the team? 31 Additionally, keep in mind that even if an employee was injured while playing on a company team, the aforementioned factors must be carefully evaluated to determine whether the injury is compensable. The Court of Appeals has held on several occasions that an employee injured while playing on a company team did not sustain a compensable injury where the injury was not on the employer s premises, the injury occurred after work hours, the employer did not require participation, the employer received no benefit from the team (other than the general improvement in employee health and morale), and the uniforms (although imprinted with the employer logo) were purchased by the employees themselves. 32 Injuries During Ingress & Egress It is a well-established law that employees are provided a reasonable period of time for ingress to and egress from work, during which time the employee remains, for purposes of workers compensation, in the course of his employment as to any injury sustained on the employer s premises. 33 As such, even if the employee is not actually working at the time, it is generally held that if an employee is injured on the employer s premises within a reasonable time of ingress or egress, the injury shall be compensable. 34 However, there is no specific criteria as to what constitutes a reasonable time. Georgia Courts have found that lapses in time of up to 15 to 30 minutes from ingress to or egress from work to be reasonable. 35 There may also arise a question in ingress/egress cases as to what constitutes the employment premises or place of employment. Georgia Courts have held if the employee has a fixed place of employment, then the company parking lot adjacent to a facility, if the parking lot is owned or leased by the company, would be considered part of the employment premises. Injuries in the Parking Lot As indicated in the ingress/egress section, the important question is: Is the parking lot owned and operated by the employer or by a third party? If the parking lot is owned and operated by the employer, and the employee is injured in the parking lot while going to or from the parking facilities, the injury will likely be compensable. 36 Likewise, even if the parking lot is leased, rather than owned by the company, an injury 30 Larson, The Law of Workmen s Compensation, Vol. 1, 5-62, 22 (Matthew Bender 1979 Rev.). 31 Id. 32 See Crowe v. Home Indem. Co., 145 Ga. App. 873, 245 S.E.2d 75 (1978); City Council of Augusta v. Nevils, 149 Ga. App. 688, 255 S.E.2d 140 (1979). 33 West Point Pepperell, Inc. v. McEntire, 150 Ga. App. 728, 258 S.E.2d 530 (1994). 34 De Howitt v. Hartford Fire Ins. Co., 99 Ga. App. 147, 108 S.E.2d 280 (1959). 35 See Macy s South, Inc. v. Clark, 215 Ga. App. 661, 452 S.E.2d 530 (1994); United States Cas. Co. v. Russell, 98 Ga. App. 181, 105 S.E.2d 378 (1958). 36 U.S. Casualty Co. v. Russell, 98 Ga. App. 181, 105 S.E.2d 378 (1958).
27 occurring in the parking lot will likely be compensable. 37 However, an injury in a public parking lot neither owned, controlled, nor maintained by the employer will generally be held to not be compensable. 38 Keep in mind that the Georgia Court of Appeals has taken a fairly liberal approach in these parking lot cases in determining whether a parking lot is operated by an employer. 39 Injuries While Going to or from Work in a Company-furnished or Expense-paid Personal Vehicle Generally, injuries occurring while an employee is going to or coming from work are not compensable. However, when an employee is provided transportation by the employer, as a condition of employment, an exception to the general rule may apply. Specifically, if an employee is injured while being transported to or from work in a company vehicle, and the employee is paid for the travel time, the injury is likely to be held compensable. 40 However, even if the employee is not paid for the travel time, but is traveling to or from work in a vehicle furnished by the employer as an incidence of employment, the injury is still usually compensable. 41 The key test in this situation is whether the transportation to or from work is furnished as an incidence to or in furtherance of employment. 42 Where the transportation to or from work in a company vehicle or expense paid personal vehicle is only given as a favor to an employee, solely for the employee s benefit and accommodation, any injury sustained in the course of the transportation is not compensable. 43 Likewise, if an employee used an employer vehicle without employer authorization, any injury which occurred in the course of the unauthorized use would not be compensable. 44 Injuries Occurring During a Rest Break or a Lunch Break Injuries which occur during scheduled breaks when the employee is not doing something in furtherance of the employer s business are generally not compensable. 45 There are three critical elements which must be met for an employer to rely successfully on a rest break or lunch break defense: (1) the time of the break must be scheduled; (2) the employee must be free to do as he chooses, and the employer must have no control over the employee during the scheduled break; (3) the employee cannot be doing some act incidental to or in furtherance of employment during the scheduled break. 46 In a rest break or lunch break case, although the claimant bears the initial burden of proving that his injury arose out of and in the course of employment, i.e. that the injury occurred on the employer s premises during the work day, albeit during a break, the burden of proof then shifts to the employer. The employer then bears the burden of proving the break was regularly scheduled and the employee was not subject to the employer s demands or control during the regularly scheduled break. 47 It must be noted, however, even if the employee was injured on a scheduled break for which he had freedom of action, if he was performing some act beneficial to the employer at the time of the injury, the injury may be found compensable. The Court of Appeals has held, Clearly, even if the employee is on a scheduled break and even if the employee is 37 Knight-Ridder Newspaper Sales, Inc. v. Desselle, 176 Ga. App. 174, 335 S.E.2d 458 (1984). 38 Tate v. Bruno s Inc./Food Max, 200 Ga. App. 395, 408 S.E.2d 456 (1991). 39 See Department of Human Resources v. Jankoski, 147 Ga. App. 441, 249 S.E.2d 124 (1978). 40 Indemnity Ins. Co. of N. Am. V. Bolen, 106 Ga. App. 684, 127 S.E.2d 832 (1962). 41 Hamner v. White, 80 Ga. App. 648, 56 S.E.2d 653 (1949). 42 Wilcox v. Shepherd Lumber Corp., 80 Ga. App. 71, 55 S.E.2d 382 (1949). 43 American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342, 200 S.E. 150 (1938). 44 Williams v. Pacific Employers Ins. Co., 109 Ga. App. 695, 137 S.E.2d 348 (1964). 45 Ocean Accident & Guaranty Co. v. Farr, 180 Ga. 266, 178 S.E. 728 (1934). 46 See Home Indemnity Co. v. Swindle, 146 Ga. App. 520, 246 S.E.2d 507 (1978). 47 Rampley v. Travelers Ins. Co., 143 Ga. App. 612, 239 S.E.2d 183 (1977).
28 free to use the break time as he pleases, if the employee is in fact engaged in employment-related activities, the injury is compensable under the Act. 48 For example, the Georgia Court of Appeals held a secretary s injury to be compensable when she slipped and fell in a fast food restaurant while getting lunch for her office manager during her own lunch break, finding that she was not performing a task of a personal nature, but rather was performing a task of benefit to her employer as it allowed her manager to remain at his desk and work during lunch. 49 Conclusion All of the above scenarios rely heavily on the specific facts of each particular case. Thus, it is essential to examine each case on an individual basis, paying special attention to detail and all important facts, while keeping in mind the applicable case law. When analyzing each specific fact scenario, it is important to utilize the specific tests and questions outlined by the Georgia Courts in order to arrive at a well-informed decision regarding compensability. 48 Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 354 S.E.2d 204 (1987). 49 Edwards v. State, 173 Ga. App. 87, 325 S.E.2d 437 (1984).
29 COMMON WORKERS COMPENSATION DEFENSES IN GEORGIA By Cristine K. Huffine The Workers Compensation Act is a body of law enacted by the legislature to simplify the process for injured workers to obtain the necessary medical treatment and provide a no-fault system for on-the-job injuries. At the same time, the legislature wanted to limit the injured employee s recovery to specific benefits as opposed to the remedies that might be available under traditional common law. As such, an injured worker is not required to file a lawsuit against an employer to obtain compensation for injuries sustained in a work accident and the employer is not exposed to damages such as pain and suffering. In essence, the workers compensation system is a legislatively created quid pro quo. With the enactment of the Workers Compensation Act, the employer lost most of the typical defenses that are grounded in the common law, such as negligence on behalf of the injured worker and the injured workers assumption of the risk. However, the Workers Compensation Act and the appellate decisions interpreting the Act provide specific defenses that can be utilized by the employer to defend against liability for a workers compensation claim. This paper will address some of those defenses. Arising Out Of And In The Course Of An employee s injury is only compensable if it is an injury arising out of and in the course of the employment. O.C.G.A (4). The words arising out of mean there must be some causal connection between the conditions under which the employee worked and the injury he sustained. Thornton v. Hartford Accident & Company, 198 Ga. 786 (1945). The words in the course of employment pertain to the time, place and circumstances of the accident. In Georgia, this means the injury occurred: (1) within the period of employment; (2) at a place where the employee reasonably may be in the performance of the employee s duties; and (3) while the employee was fulfilling the employee s duties or is engaged in something incidental thereto. Barge v. City of College Park, 148 Ga. App. 480 (1978). In other words, an injury arises in the course of employment when it occurs within the period of the employment, at a place where the employee may be in the performance of his or her duties and while he or she is fulfilling or doing something incidental to those duties. Webster v. Dodson, 240 Ga. App. 4 (1999). Idiopathic Injuries Even if the employee can establish that an incident occurred in the course of the employment, it is equally important that the accident also arises out of the employment. Corbin v. Liberty Mutual Insurance Company., 117 Ga. App. 823, 162 S.E.2d 226 (1968); Garrett v. K-Mart Corp., 197 Ga. App. 374, 398 S.E.2d 302 (1990). An injury may occur in the course of employment, but yet not arise out of it. Continental Casualty Company v. Caldwell, 55 Ga. App. 17, 189 S.E.408 (1936). For an accidental injury to arise out of the employment the accident must be one resulting from a risk of reasonable incident to the employment. O.C.G.A (4); State Department of Labor v. Yates, 131 Ga. App. 71, 205 S.E.2d 36 (1974). The leading case involving idiopathic injuries involves the Chaparral Boats case. In Chaparral Boats, Inc. v. Heath, 269 Ga. App. 339, 606 S.E.2d 567 (2004), an employee, Ms. Heath, was walking across the Chaparral premises to clock in for work when she hyper-extended her left knee. The medical evidence in that case showed the injury, which caused cartilage tears in Heath s knee, could have occurred anywhere. Under Chaparral Boats the Court of Appeals found that, for an accidental injury to arise out of the employment, there
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