WORKERS' COMPENSATION NEWSLETTER

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1 PHONE: FAX: WORKERS' COMPENSATION NEWSLETTER 2015 Issue No. 64 COMBINED SEASON ISSUE * * * * * * Deal, with these changes being effective as of July 1, Highlights of the new laws are as follows: 1. Change in Benefit Rates VISIT THE GEORGIA STATE BOARD OF WORKERS' COMPENSATION WEBSITE ( FOR CURRENT BOARD FORMS AND LEGISLATIVE UPDATES. * * * * * * LEGISLATIVE UPDATE The General Assembly passed the workers compensation bill (HB 412) during the 2015 session, and it was signed into law by Governor Nathan For all accidents occurring on or after July 1, 2015, the new maximum temporary total disability rate shall be $ per week, and the new maximum temporary partial disability rate shall be $ per week. 2. Change in Death Benefits O.C.G.A (d) now provides that the maximum compensation payable to a surviving spouse as the sole dependent at the time of the employee s death will be $220, Changes to the Subsequent Injury Trust Fund The life of the Subsequent Injury Trust Fund ("SITF") has been extended from 2020 to The new law also changed the formula for assessments to insurers and self-insurers to allow SITF to _1

2 maintain an influx of $100 million per year to continue to pay claims out and to try to conclude claims more quickly. 4. Change in Options for Complying with The Physician Selection Process As O.C.G.A had been previously drafted, an employer could comply with the physician selection process by either having a traditional panel of physicians, a conformed panel of physicians, or an MCO. A traditional panel, which is utilized by the vast majority of employers in Georgia, requires a minimum of six unassociated physicians, whereas the conformed panel requires ten unassociated physicians. Up until July 1, 1998, employees of employers utilizing a conformed panel of physicians were legally obligated to utilize their one free change of panel physicians within 60 days of commencing treatment for an on-the-job injury. This was the only benefit for an employer to have a conformed panel of physicians. Effective July 1, 1998, this provision was deleted from O.C.G.A and, since that time, there has been no benefit for an employer to use a conformed panel, and conformed panels were consequently seldom used. The new law removes the conformed panel option from the Act. 5. Language Added to The Exclusive Remedy Provision The new law provides additional language designed to strengthen the exclusive remedy provision located at O.C.G.A The added language clarifies that this statute bars all civil liabilities unless the employer specifically agrees in writing to allow for remedies beyond those provided under the Workers' Compensation Act, and general contractual provisions will not result in the employer providing for additional remedies. CASE LAW UPDATE PROVIDING MEDICAL TREATMENT IN ACCORDANCE WITH O.C.G.A (C) AND THE SUITABILITY OF LIGHT-DUTY JOBS Brasher v. U.S. Xpress Enterprises, Inc., 328 Ga.App. 20 (2014). Overview: A claimant was injured while working as a truck driver, but the Employer/Insurer did not provide claimant medical treatment pursuant to its obligations under the Workers' Compensation Act, leading the Court of Appeals to hold that claimant could select his own authorized treating physician pursuant to O.C.G.A (f). The Court of Appeals also held, however, that claimant was not entitled to continuing TTD benefits because he had unjustifiably refused a suitable light-duty position. Ronald Brasher ("claimant") was employed as a truck driver with U.S. Xpress Enterprises,Inc. ("Employer/Insurer/Insurer"). On March 18, 2012, claimant drove to Rome, Georgia to pick up a load but was injured when a steel crank he was using to connect the truck to a pre-loaded trailer lowered Page: 2 Issue No. 64

3 suddenly, causing him to be struck by the crank in the chest, neck, back and head. Claimant was taken to Floyd Medical Center by ambulance. He was treated and released that evening with no work restrictions being given to him, but he was directed to follow up with a physician within 24 hours. The next morning while he was in Atlanta, claimant asked a workers' compensation analyst for the Employer/Insurer for medical treatment, but she responded that she could do nothing further for him since the emergency room records appeared to clear him and provide for no follow-up treatment. She also told claimant that the matter had been turned over to the insurance company. Claimant went to an urgent care center but received no treatment on that day. On March 21, 2012, claimant was treated at an urgent care center in Atlanta, where he was diagnosed with a cervical strain, contusions of the thoracic, face, scalp and chest wall, and neuropathy in his face and upper arm. The doctor placed claimant on work restrictions, and these restrictions were continued during claimant's return to that facility on March 23, At that second visit, claimant was also given a urgent referral to see an orthopedic surgeon because of this claimant's decreased upper extremity strength. Claimant returned to this urgent care center on March 27, 2012, and he was ordered to limit the use of his arms after this visit. Claimant also had his work restrictions continued on April 3, 2012 after he visited an urgent care center in Columbus, Georgia. Because claimant had been sleeping in a lounge chair at the Employer/Insurer's terminal, he then returned to his home in Opelika, Alabama. The Employer/Insurer then offered claimant a light duty job at their terminal in Tunnel Hill, Georgia. The claimant's job was to stay in a guard shack and to ensure that the truck drivers entering into the terminal were wearing their seatbelts. The Employer/Insurer contended that this position fit within the doctor's restrictions and stated that claimant could sit or stand in the guard shack as needed. On April 5, 2012, Employer/Insurer provided claimant a bus ticket from his home to Tunnel Hill. Claimant reported to work but then only worked for approximately five hours after he claimed that his request for $25.00 from the Employer/Insurer so that he could purchase food to take with his medication was denied. Claimant then signed a form indicating that he declining the light-duty job, which remained available to him, for financial reasons. Claimant filed a WC-14 Request for Hearing on May 17, 2012 requesting temporary total disability benefits from March 18, 2012 and continuing, authorization for medical treatment, and attorney's fees and penalties. After filing his hearing request, claimant made several more trips to an urgent care facility, and he also treated with neurologist Dr. Larry Empting on a number of occasions. Also, in September 2012 claimant saw his former orthopedic surgeon, Dr. John Dorchak, in September of Dr. Dorchak diagnosed cervical and thoracic sprains and recommended MRIs to rule out a disc herniation and an occult fracture. Dr. Dorchak released claimant to sedentary duty, as had Dr. Empting. A hearing occurred on September 25, 2012, and the Administrative Law Judge concluded that claimant was entitled to TTD benefits from March 21, 2012 through April 5, 2012 but that he was not entitled to further Page: 3 Issue No. 64

4 indemnity benefits because he had refused a suitable job position (the guard position at the terminal) that remained available to him. The ALJ further held that claimant was entitled to medical treatment at the expense of the Employer/Insurer and that the authorized treating physician should be John Dorchak, M.D. The Appellate Division of the Board affirmed the ALJ's decision, and the claimant then appealed the case to superior court. The superior court did not issue an opinion within 20 days of the hearing. Hence, the Board's decision was affirmed by operation of law pursuant to O.C.G.A (b)(d). The first point made by claimant to the Court of Appeals of Georgia after it granted claimant's application for discretionary appeal was that claimant could choose whatever physician he wanted to treat with because it was Employer/Insurer's responsibility under the Act to provide timely medical care to an injured claimant and to post a panel of authorized physicians, neither of which was done here according to claimant. The Court of Appeals noted that if an Employer/Insurer fails to provide any of the procedures for the selection of physicians as outlined in O.C.G.A (c), an employee may choose any physician to treat him or her at the expense of the Employer/Insurer pursuant to O.C.G.A (f). In this case, the Court of Appeals held that the Board had erred in that there was no evidence in the record that the Employer/Insurer posted a panel of physicians, gave the claimant appropriate assistance in contacting a physician on the panel, or informed claimant of his right to select a panel physician following the work injury. The Court of Appeals noted that when claimant contacted the Employer/Insurer's workers' compensation analyst the day after the injury the analyst offered no assistance. The Court also noted that claimant had been turned away from attempts to receive treatment from an urgent care facility and from his primary care physician because his injuries were deemed work related. Hence, the Court of Appeals held that claimant was entitled to choose his treating physician and that the Board had erred by appointing Dr. Dorchek as the authorizing treating physician. Claimant next argued that he was entitled to continuing TTD benefits because the Board had erred in holding that he had refused a suitable light-duty job and was not justified in refusing this position pursuant to O.C.G.A On this point, the Court of Appeals disagreed and noted that the phrase "suitable to his or capacity" in the statute refers to the employee's physical capacity or ability to perform the work within his or her physical limitations or restrictions, his or her ability or skill to perform the job, or factors such as geographic relocation or travel conditions which would disrupt the employee's life. The Court of Appeals held under the any evidence standard of review that the evidence supported the Board's findings that the guard position at the terminal was appropriate and remained appropriate for this claimant's physical limitations. The Court of Appeals did not find credible claimant's contentions that he refused the light-duty job because he had no money to take the medications that were prescribed for his injury. The Court of Appeals found that, contrary to claimant's contention that he would starve to death if he worked this light-duty position that was 15 hours away from his home without any money to buy food, the Employer/Insurer provided claimant with a hotel that included breakfast and that claimant's supervisor also offered to by claimant lunch for four days. The Court of Page: 4 Issue No. 64

5 Appeals also noted that claimant testified that he was frustrated with the light-duty position because it required him to sit for eight hours a day while he needed to stand and move around, but the Court noted that the evidence showed that claimant was told that he could stand and move around in the guard shack. The Court of Appeals also noted that the bus ride from claimant's home in Alabama to Tunnel Hill, Georgia, although it did take approximately 15 hours, was not a justifiable reason for claimant to refuse to accept this job because this claimant was a long-haul truck driver who was required to travel across the country and who was thus accustomed to long periods of time away from home. Hence, the Court of Appeals held that the Board was authorized to conclude that claimant's reasons for quitting were not credible and that his refusal to work this position was not justified. The Court of Appeals did hold that claimant was entitled to a 15% late penalty because the TTD benefits from March 21, 2012 through April 5, 2012 were not paid timely as is required pursuant to O.C.G.A (e). The Court of Appeals did not lend credence to Employer/Insurer's argument that this issue was moot because it had already paid these benefits plus the 15% percent late penalty because the evidence of this payment was not in the record. The Court of Appeals, however, held that claimant was not entitled to additional TTD benefits based on a urgent care medical report dated July 11, 2012 that indicated that claimant could engage in "no activity" because such a phrase was ambiguous. For example, the Court stated that this phrase could be referring to claimant needing to be physically inactive or with him being in an inactive status with respect to his treatment at that urgent care facility. Claimant also argued in his final enumeration of error that the Board's alleged erroneous application of the workers' compensation law in the claim deprived him of his due process and equal protection rights. The Court of Appeals noted that the claimant did not specify how his due process rights were violated, and it further noted that claimant had had notice and a full hearing on his claims. The Court of Appeals further held that claimant's equal protection claim had no validity, either, because his arguments "relating to alleged unfair disparity in a workers' compensation cases are matters to be addressed by the General Assembly and not to the judiciary." LATE PENALTIES AND THE TIMELY APPLICATION FOR THEM PURSUANT TO O.C.G.A (B) Metropolitan Atlanta Rapid Transit Authority v. Reid, 295 Ga. 863 (2014). Overview: The Supreme Court of Georgia held that if late penalties that are owed to a claimant are requested over two years after TTD or TPD benefits are last paid to the claimant, these additional income benefits should be time-barred pursuant to O.C.G.A (b). In this case, claimant sustained a work injury while working for MARTA ("Employer") in October Shortly after the injury occurred, Employer paid claimant 32 payments of temporary total disability benefits. It was not in dispute that 12 of the 32 TTD payments were untimely pursuant to O.C.G.A (e). Claimant returned to work for the Employer in June 2002, and his income benefits were suspended at that time. Approximately eight years later, claimant demanded a penalty payment on the 12 late TTD payments, but Employer refused this demand, instead arguing that claimant's Page: 5 Issue No. 64

6 request for late penalties was untimely and time barred. Claimant filed a hearing request, and the Administrative Law Judge held that claimant was indeed time barred under O.C.G.A because this was a change in condition claim in which claimant had not timely made a request for additional income benefits within two years of last having received indemnity benefits. This result was affirmed by the Appellate Division of the Board and the superior court, but the Court of Appeals of Georgia granted claimant's application for discretionary review and reversed the superior court. The Court of Appeals held that claimant's request for late penalties was not governed by any statute of limitation time period. The Supreme Court of Georgia granted Employer's writ of certiorari and reversed the Court of Appeals. The Supreme Court noted that workers' compensation claims are governed by two statute of limitation statutes: O.C.G.A and O.C.G.A (b). O.C.G.A is for all-issues claims and provides that a claim for workers' compensation medical and income benefits needs to be filed within one year of the date of accident or injury that gives rise to the claim. O.C.G.A (b) requires a claimant to file for additional temporary total disability or temporary partial disability benefits within two years of having last received these benefits or a claim for additional benefits would be denied. Claimant argued that his claim for additional compensation was timely because O.C.G.A applied, and he had timely filed his claim under this statute. On the other hand, the Employer argued that O.C.G.A (b) applied and thus that claimant's attempt to obtain late penalties was thus untimely. The Supreme Court of Georgia held that the Court of Appeals was correct in holding that claimant had not undergone a change of condition with respect to either his wageearning capacity of physical condition, but it held that the Court of Appeals erred in failing to consider the third type of change in condition, which is whether a claimant has undergone a change in his or her "status." The Supreme Court noted that some individuals have interpreted the term "status" to refer to a dependent's status as a beneficiary (e.g. if a former spouse of a deceased employee remarries), but it rejected this interpretation as it related to the facts of this case. Instead, the Supreme Court utilized statutory construction principles in holding that the term "status of an employee" in the workers' compensation arena as provided in the statute means the legal condition of an employee in the context of an employer-employee relationship. Thus, the Supreme Court held that this claimant's status with respect to this Employer was first established when the Employer began paying benefits voluntarily and was last established when the last indemnity benefits were paid to claimant. The Supreme Court held that although late penalty benefits are generated automatically when a payment is late and that late penalties are themselves income benefits, because claimant went beyond two years after his last payment received before filing a request for hearing for additional income benefits, his claim was time barred by the change of condition statute located at O.C.G.A (b). The Supreme Court noted that with respect to workers' compensation cases, as with any other type of case, there should be finality and that statutes of limitation are designed to "preclude surprises through the revival of claims that have been allowed to slumber until evidence has been lost, Page: 6 Issue No. 64

7 memories have faded, and witnesses have disappeared." The Supreme Court, in reversing the Court of Appeals' opinion that claimant's claim for late penalties was not governed by any statute of limitation, concluded as follows: "The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." The take away from this case is that, as a general matter, if late penalties that are owed to a claimant are requested over two years after TTD or TPD benefits are last paid to this claimant, these additional income benefits should be time-barred under O.C.G.A (b). INGRESS/EGRESS RULE Bonner-Hill v. Southland Waste Systems of Georgia, Inc., 330 Ga.App. 151 (2014). Overview: The Court of Appeals of Georgia reversed the superior court and Appellate Division of the Board and deemed that the injury in question was compensable because it held that the employee was killed by a train while on the employer's premises while he was in the act of going to his place of work to begin his employment for the day. Adonis Hill ("employee") was working for Southland Waste Systems of Georgia, Inc. ("Employer") on March 4, On that day, claimant was on his way to work in his personal vehicle when he was struck by a train that was heading northbound. Claimant died from injuries he sustained in this accident. Latoya Bonner Hill ("claimant"), employee's wife, filed a claim for workers' compensation death benefits on behalf of herself and her three minor children. Employer denied payment of these benefits, contending that employee's death did not occur in the course of his employment. The Administrative Law Judge agreed with the widow and determined under the ingress rule that the claim was compensable because the short entrance road that claimant was driving that crossed over the railroad track was the only way that claimant could access his work place. The ALJ also noted that the lease between the Employer and B & D Services, Inc. was such that Employer's employees were allowed to utilize this entrance road for ingress and egress. The ALJ concluded that the claim was compensable because employee had no other way to get to the building where he worked, the entrance road was part of the business premises, employee's arrival was during a reasonable time before he was scheduled to begin work, and the Employer had control over the entrance road being used by employee pursuant to its lease. The Appellate Division of the Board, however, reversed the decision of the ALJ because it held that the claimant had not arrived at work prior to the accident and that the ingress/egress rule did not apply because this exception only applied to accidents that occurred on an employer's premises. The Appellate Division determined that the Employer did not exclusively own, maintain, or control the entrance road where the employee was struck by the train while he was driving his personal vehicle. Claimant sought reconsideration of this Award, but this was denied. Claimant then appealed to the superior court, but the case was automatically affirmed pursuant to O.C.G.A (b) because the trial court did not issue an order within 20 days of hearing claimant's appeal from the Page: 7 Issue No. 64

8 State Board of Workers' Compensation. The Court of Appeals of Georgia granted claimant's application for discretionary appeal. The Court of Appeals noted that under the Workers' Compensation Act an employee is entitled to compensation if he/she is injured in an accident that arose out of and in the course of employment. It further noted that the general rule is that an accidental injury which occurs while an employee is traveling to or from work does not arise out of or in the course or employment and is not compensable under the Act. The Court of Appeals noted that an exception to the general rule has been created for ingress and egress. Under this rule, if an employee is injured "while on the employer's premises in the act of going to or coming from his place of work, the injury is compensable." The Court of Appeals further explained: "This rule it predicated, in part, on the idea that the employee has not departed from the premises if he or she has not started traveling a route of his choosing wholly disconnected from his employment." The Court of Appeals stated that the application of the ingress/egress exception requires a factual investigation into whether the place where the injury occurred is part of the employer's business premises. The Court of Appeals held that the ingress/egress exception essentially applies under the following two circumstances: 1) When the area where the injury (or very nearly so) occurred is limited to the business, even if business' right to the area is under a lease or some other non-exclusive access, or 2) when the area where the injury occurred is owned, maintained, or controlled by the business, even if the area is heavily traversed by the public that has no connection to the business. In reversing the superior court and Appellate Division of the Board's denial of workers' compensation benefits to the employee's widow, the Court of Appeals noted that the Employer's lease included two acres of property on which train tracks ran and that this lease further indicated that the Employer's premises would include access to the entrance road where this claimant was killed. The Court of Appeals held that, consequently, the claimant had arrived at employer's premises when the accident occurred, meaning that the ingress/egress rule did apply. It should be noted that Judge Steven Dillard concurred in the judgment only, meaning that this case is not considered binding precedent. AVERAGE WEEKLY WAGE AND CONCURRENT EMPLOYMENT Thomas v. Fulton County Board of Education et al., 331 Ga.App. 828 (2015). Overview: After granting a discretionary appeal, the Court of Appeals of Georgia held that claimant had worked substantially the whole of 13 weeks for two employers -- including 11.5 weeks for her primary employer and 1.5 weeks for a second employer that the Court decided was a concurrent similar employer -- even though claimant was not working for both employers on the actual date of injury. The Court held that the wages from the two concurrent employers for 13 weeks prior to the date of injury should be used in calculating this claimant's average weekly wage. Merita Thomas ("claimant"), who was a bus driver, sustained a compensable injury on October 19, 2011 while working for the Fulton County Board of Education ("Primary Page: 8 Issue No. 64

9 Employer"). Although the matter was accepted as compensable by Primary Employer, the parties disputed claimant's average weekly wage. Claimant argued, inter alia that her average weekly age should be calculated in accordance with O.C.G.A (1), which was one thirteenth (1/13th) of the total sum of claimant's wages she earned with the Employer and QDA ("Second Employer," who was another employer that claimant alleged was a concurrent similar employer). Primary Employer argued that claimant had not worked substantially the whole of 13 weeks prior to her work injury and thus that O.C.G.A (3) should be utilized, and it further argued that the wages from Second Employer should not be included in this calculation because it was not concurrent employment in that, inter alia, claimant was not working both for Primary and Secondary Employer on the date of injury. At the hearing, the Administrative Law Judge decided that claimant's work with Second Employer was concurrent and should be included to calculate claimant's average weekly wage. The ALJ indicated that O.C.G.A (1) was being used, but it appeared that instead the ALJ used O.C.G.A (3) because claimant only worked 11.5 weeks for Primary Employer and worked an additional 1.5 weeks for Secondary Employer prior to the date of injury. On appeal, the Appellate Division of the Board reversed the ALJ. The Appellate Division found that the ALJ was correct that Secondary Employer, which was a company for whom claimant drove new school buses to other areas of the country, was similar to her work with Primary Employer, but the Appellate Division determined that the wages from Secondary Employer should not be included in the average weekly wage calculation because the jobs were not performed simultaneously (i.e. they were not "concurrent" according to the Appellate Division) when claimant's injury occurred. The Appellate Division further determined that the ALJ's calculation for the 13 weeks prior to the injury was incorrect, and it instead calculated claimant's average weekly wage by multiplying by 12 her summer monthly pay from her Primary Employer and then dividing that number by 52. One Board Member dissented from this opinion and stated that O.C.G.A (3) was the appropriate method for calculating claimant's average weekly wage because she had not worked for Primary Employer for substantially the whole of 13 weeks prior to the injury. Claimant appealed to the superior court, and the superior court affirmed the Appellate Division of the Board without providing any explanation. After granting a discretionary appeal, the Court of Appeals of Georgia held that claimant was working as a bus driver for Primary Employer and Secondary Employer for substantially the whole of the 13 weeks preceding her injury date of October 19, On this point, the Court of Appeals held: "She was working as a bus driver for substantially the whole of the 13 weeks immediately preceding her injury on October 19, 2011 because she worked as a bus driver for both QDA (Secondary Employer) and Fulton County (Primary Employer) during the whole time. O.C.G.A (1) explicitly contemplates work for 'for the same or another employer' and thus, because Thomas worked those thirteen 13 weeks for the same or another employer in the type of employment in which he was injured, her average weekly wage should have been computed based on her 'total amount of wages earned' for her work during the 13 Page: 9 Issue No. 64

10 weeks immediately preceding her injury approximately 11.5 weeks with Fulton County and 1.5 weeks with QDA." The Court of Appeals noted that there was nothing in the case law which so narrowly defined "concurrent" as the Board did in this particular case and that the Board's construction was not "in keeping with the liberal construction awarded uniformly to the Workers' Compensation Act." In other words, the Court of Appeals of Georgia did not penalize this claimant by holding that the Secondary Employer's wages could not be utilized simply because claimant was not earning wages with that employer at the time of her date of injury. The Court of Appeals noted that claimant had worked for Primary Employer for a number of years and had worked for the Secondary Employer for the previous two summers and that there was nothing in the record to support a finding that claimant would not have continued working this second job the next summer. It held, thus, that claimant's employment with the two entities was concurrent in that particular calendar year. The Court of Appeals remanded the case back to the Board because although the ALJ had indicated that O.C.G.A (1) was applied, the Court of Appeals noted that in reality it appears as though the ALJ erroneously used O.C.G.A (3) for the weeks claimant worked for Primary Employer rather than the actual wages she earned with this employer. THE STATUTE OF LIMITATION LOCATED AT O.C.G.A (B) AND PAYMENT FOR UNAUTHORIZED MEDICAL TREATMENT Lane v. Williams Plant Services et al., 330 Ga.App. 416 (2014). Overview: The Court of Appeals affirmed the Appellate Division's and superior court's holdings that a payment is "actually made" when it is mailed to the recipient rather than when it is received under O.C.G.A (b) because such an interpretation is reasonable and entitled to deference. The Court of Appeals, however, held that claimant should be entitled to treat with a physician of his choosing if, on remand, he can show that his unauthorized medical treatment was for a condition related to his work injury. Kenneth Lane, Sr. ("claimant") received a workers' compensation award in 2008 for a low back injury. In March 2010, Employer suspended claimant's income benefits and mailed its last payment of benefits to him at some point before March 9, 2010 (with claimant being paid benefits through March 10, 2010). A WC-2 suspending benefits had been mailed on March 1, 2010, although this form was apparently never filed with the Board. On March 9, 2010, claimant moved for an "interlocutory recommencement of income benefits" in that it was contention that his temporary total disability benefits had been improperly suspended. The Administrative Law Judge denied this motion in that it was determined that the evidence presented by claimant was not sufficient and that an evidentiary hearing would be best suited to determine this recommencement issue. In spite of the denial of his motion, claimant did not file a WC-14 Request for Hearing until March 13, The Administrative Law Judge determined that the last payment made by the Employer was at least before March 9, 2010 because it would have necessarily been mailed before then because this is when claimant filed his motion for recommencement. The ALJ held that the Page: 10 Issue No. 64

11 language in O.C.G.A (b) as to what "actually made" means in the mailing context is when the last check was actually mailed rather than received. The ALJ determined that even if the date of March 10, 2010, which is the date the TTD benefits were paid through, was utilized, the hearing request was still filed beyond two years of that date, precluding claimant from receiving further TTD or TPD benefits under the change of condition statute of limitation. The ALJ did conclude, however, that claimant was entitled to seek treatment from a doctor of his own choosing because in the ALJ's opinion claimant had been discharged from treatment by his authorized physician on April 13, Claimant appealed the ALJ's ruling regarding his income benefits being time barred, and Employer filed a cross-appeal as to the ALJ's holding that it was responsible for payment for treatment with an unauthorized physician. (Claimant's attorney sent him to a physician he recommended after they took the position that the Employer was denying claimant further medical treatment.) The Appellate Division of the Board agreed with ALJ that the date of mailing is the date that payment was actually made, and both ALJ and the Appellate Division utilized O.C.G.A (b) as an analogous source of authority for this proposition in that this statute indicates that "the date of mailing is considered the date of payment, if mailed from outside of Georgia." The Appellate Division, however, disagreed with the ALJ on the employee's liability for medical expenses, as it found that the preponderance of competent and credible evidence showed that the Employer did not terminate the claimant's medical treatment in the case and that the authorized treating physicians did not terminate care to the claimant. Claimant appealed to the superior court, and the superior court affirmed the ALJ and Appellate Division on the statute of limitation issue. In doing so, the superior court noted that "the agency charged with administering the Workers' Compensation Act has determined that a payment of income benefits is deemed to have been made when an employer or insurer issues a check and mails it, rather than when an employee received it. The Court finds no basis for rejecting that interpretation of the Act If the General Assembly had intended the above-statute to require proof of receipt to trigger the running of the statute, it could have so provided." The Court of Appeals indicated that it must give deference to an agency's interpretation of a statute "so long as it comports with legislative intent and is reasonable." In holding that claimant's request for additional temporary total disability benefits was time barred pursuant to O.C.G.A (b), the Court noted that it did not need to decide whether the mailbox rule embodied O.C.G.A (b) should be applied to the limitation period in O.C.G.A (b) because the Appellate Division's finding that a payment was "actually made" when it is mailed to the recipient is reasonable and entitled to deference. The Court of Appeals noted that claimant's argument that Trent Tube v. Hurston, 261 Ga. App. 525, 283 (2003) was inconsistent with this holding did not change this result because that case did not address when a mailed payment is "actually made," and the Court of Appeals also noted that it could not consider claimant's argument that the motion he filed to recommence TTD benefits on March 9, 2010 should be interpreted as a timely application for additional income benefits under O.C.G.A (b) because claimant's brief did not provide a record citation for this, the Board index to its record Page: 11 Issue No. 64

12 did not list this motion, and a review of the record did not reveal this motion. As for whether past paid medical treatment with an unauthorized physician should be made, the Court of Appeals held that the Appellate Division ruled upon incomplete evidence, misstated that physical therapy was completed on January 27, 2011 as opposed to January 27, 2010, and that the undisputed evidence showed that claimant's authorized physicians had discharged him as a patient and released him to work without restrictions in April As a result, the Court of Appeals held that it needed to vacate the portion of the superior court's decision that affirmed the Appellate Division's denial of claimant's request for payment of unauthorized medical expenses. The Court of Appeals had noted that if an employer fails to provide any of the procedures for the selection of physicians as is provided in subsection (c) of O.C.G.A , a claimant may select any physician to render service at the expense of the employer if the treatment is for a condition related to the work accident. Here, the Court of Appeals decided that the case should be remanded because neither the ALJ nor the Appellate Division addressed whether claimant's unauthorized medical treatment was for a condition related to his work injury. TRANSPORTATION ISSUES Board Claim No (Decided February 24, 2015 by the Appellate Division) Overview: The Appellate Division of the Board held that the authorized physicians never placed claimant under any driving restrictions related to the compensable injury and thus that the ALJ erred in deciding that the Employer/Insurer needed to provide transportation for this claimant to his medical appointments. In this matter that went before the Appellate Division of the Board, the Employer/Insurer appealed an Award by the Administrative Law Judge in which she determined that the claimant was entitled to psychological treatment, transportation to and from his work-related medical appointments that was to be provided by the Employer/Insurer, medical treatment for certain injuries as being related to the compensable injury, and assessed attorney's fees against the Employer/Insurer for a unreasonable defense. The Appellate Division affirmed as to all issues except for the one regarding transportation. The Employer/Insurer argued that the ALJ erred in holding that it was required to provide transportation to and from the claimant's authorized medical appointments because such was not a medical necessity related to his compensable injury. The Appellate Division noted that O.C.G.A generally requires for an employer to pay for the medical services related to a compensable work injury that are prescribed by a licensed physician and that are reasonably required and appear likely to affect a cure, give relief, or restore an employee to suitable employment. The Appellate Division further noted that Board Rule 203(e) provides that medical expenses include, but are not limited to, the reasonable cost of travel between a claimant's home and the place of examination or treatment and that when the travel to get there is by private vehicle that the rate of mileage for reimbursement shall be 40 cents per mile. The Appellate Division held that the authorized physicians never placed claimant under any driving restrictions related to the compensable injury and thus that the ALJ Page: 12 Issue No. 64

13 erred in deciding that the Employer/Insurer needed to provide transportation for this claimant to his medical appointments. Even though the evidence of record showed that claimant did not possess a valid driver's license, he had access to two vehicles at his home and had testified to driving them in the past. The ALJ had held that to disallow employee from receiving transportation from the employer to and from any medical appointments would be against public policy because it could encourage claimant to wrongfully drive without a license, and she also found that Board Rule 203(e) is not specifically limited to mileage reimbursement and may contemplate an employer/insurer's providing of expenses other than mileage reimbursement. The Appellate Division held, however, that since the authorized treating physician had not imposed any driving restrictions on claimant related to the injury that the request for transportation was not related to his compensable injury. It further noted that the fact that claimant had no driver's license did not reasonably justify requiring the Employer/Insurer to incur the cost of transporting the employee to authorized medical appointments, other than the mileage reimbursement of 40 cents per mile required by Board Rule 203(e) when a claimant's travel to and from an appointment is by private vehicle. The Appellate Division further held that considering the claimant's potential actions of driving to his appointments without a license was outside the scope and purview of the Employer/Insurer's responsibility to provide proper medical care that is reasonably required and appears likely to affect a cure, give relief, or restore an employee to suitable employment. The Appellate Division indicated that not requiring the Employer/Insurer to provide this transportation did not require claimant to drive without a driver's license, require any other family member to drive the claimant to appointments, or "encourage action different than the employee faces for any existing transportation needs," as the Appellate Division noted that the employee may use public transportation or in other ways arrange for transportation to his medical appointments as necessary. BURDEN OF PROOF ISSUES FOR ALLEGED WORK-RELATED STROKES Save-A-Lot Food Stores et al. v. Amos, 331 Ga.App. 517 (2015). Overview: An employee alleged he suffered a work-related stroke, but his claim was denied by the Board. The superior court reversed the Board since it opined that the Board had held claimant to a heightened standard of proof to prove his claim. In reversing the superior court, the Court of Appeals held that a claimant must still prove his or her claim for certain injuries, such as heart attacks and strokes, by a preponderance of competent and credible evidence, but it noted that these types of injuries do require medical evidence. James Amos ("claimant") filed a claim for workers' compensation benefits for disablement he contends occurred as a result of a work-related stroke that he alleged occurred while he was working for Save-A- Lot Food Stores ("Employer"). Employer and its Insurer controverted the claim, and a hearing was held before an Administrative Law Judge. Claimant testified at the hearing that on August 5, 2011 he became dizzy at work while loading pallets of meat weighing between 15 and 60 pounds and that he Page: 13 Issue No. 64

14 eventually developed a severe headache and other symptoms that caused him to drive to the hospital, where he was admitted for three days. Dr. Melanie Shorter, who was claimant's family doctor, opined that claimant had suffered a stroke and that his job-related stress was a contributing factor to this condition. She also stated that claimant's tobacco use, uncontrolled diabetes, hypoadenia, inactivity, and family history were also possible factors. Dr. Michael Frankel, a neurologist, testified, on the other hand, that an MRI and other medical records showed no evidence of a stroke and that it also is not clear as to whether stress is a real factor that can lead to the occurrence of a stroke. Dr. Frankel also indicated that claimant had a number of other significant risk factors for stroke, including diabetes, his family history, and the fact that he smoked cigarettes. Dr. Abdul Qadir also treated claimant, and he determined that there was no objective evidence that claimant had suffered a stroke and that the cause of his symptoms was unclear. In denying claimant's benefits, the ALJ held that claimant had not shown that he had suffered a stroke and that, even if he had he had made such a showing, he had not shown that this stroke was caused by work stress. The ALJ noted that claimant had "failed to prove by preponderance of competent and credible evidence that he suffered a stroke arising out of, and in the course of, his employment." Claimant appealed to the Appellate Division of the Board and argued that the ALJ had improperly held him to a heightened standard of proof. In so alleging, he pointed to a portion of the ALJ's award that stated: "The standard of proof on all factual questions is by a preponderance of the credible evidence. Employee is required to meet a higher standard of proof to establish that his alleged stroke is compensable. That proof must also be supported by medical evidence." The Appellate Division affirmed the ALJ in holding that the preponderance of competent and credible evidence showed that claimant had not suffered a compensable injury, but it did note: "To the extent that the administrative law judge referenced in paragraph 13 of the award that the Employee is required to meet a higher standard of proof to establish that his alleged stroke is compensable in this case, we find he so erred. As such, based upon the foregoing, the third sentence of paragraph 13 of the findings of fact and conclusions of law is stricken." The superior court reversed the Appellate Division. In doing so, the superior court held that the ALJ's "higher standard of proof" was erroneous and that the Appellate Division had recognized this error but had failed to correct it. The superior court remanded the case back to the State Board "with instructions to conduct a new trial and issue new and complete findings of fact and conclusions of law. Employer filed for a discretionary review of the superior court's decision, and this was granted. The Court of Appeals indicated that O.C.G.A (4) provides that there is no compensability for heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, stroke, or thrombosis unless it is shown by a preponderance of competent and credible evidence, which shall include medical evidence, that any of such conditions were attributable to the performance of the usual work of employment. The Court of Appeals noted that an employee seeking benefits as a result of an alleged stroke caused by work "must produce some Page: 14 Issue No. 64

15 medical evidence to support a claim for benefits." In reversing the superior court, the Court of Appeals held that the any evidence standard of review was applicable in this case and that the Board's Award was indeed supported by evidence in the record. The Court of Appeals further noted that both the ALJ and Appellate Division had indicated the proper standard of proof a claimant needed to meet, which is that he or she must prove by a preponderance of competent and credible evidence that he or she suffered a stroke arising out of his or her employment. It thus determined that the Board had applied the proper standard of review, and it reversed the superior court's decision. The Court of Appeals noted that it simply appeared that the reference in the ALJ's Award that claimant was required to meet a higher standard of proof to establish that his alleged stroke was compensable merely "referred to the statutory requirement of additional medical evidence in certain workers' compensation claims, such as heart attack and stroke, as being a 'higher standard of proof.' " THE ANY EVIDENCE STANDARD OF REVIEW Emory University v. Duval, 330 Ga.App. 663 (2015). Overview: An employee's medical records were weighed differently by an ALJ and the Appellate Division of the Board, and the Appellate Division reversed the ALJ. In reversing the superior court, which had reversed the Appellate Division, the Court of Appeals held that if the Board's findings are supported by any evidence they are conclusive and binding on the superior court and Court of Appeals. Sandra Duval ("claimant") worked as a nurse at Emory University Hospital Midtown ("Employer"). She had worked there as a nurse in a telemetry unit from October 2008 until she was terminated in January On December 3, 2010, claimant sustained a right shoulder injury that occurred when she was lifting a patient and felt a pop in her right shoulder. Employer accepted this claim as compensable. In January 2011, claimant sought treatment from an approved workers' compensation doctor for her right shoulder, and she received a steroid injection in her right shoulder and then returned to full-time work approximately a week later. In February 2011, claimant returned to the orthopedic surgeon for left shoulder pain, and she received a steroid injection for that shoulder before she again returned to her regular duties. Claimant's physician ordered an MRI of her left shoulder, and she then underwent a rotator cuff repair surgery in November 2011, with claimant never returning back to work after this left shoulder surgery. Claimant stated that she was unable to use her left arm for eight weeks after the surgery and thus that it was difficult and painful for her to rely only on her right arm to accomplish tasks. In February 2012, claimant returned to the orthopedic surgeon and received two more steroid injections to her right shoulder before she ultimately underwent a rotator cuff repair to this shoulder. Claimant thereafter requested a hearing in which she sought additional medical benefits for her December 3, 2010 compensable right shoulder injury (including payment for the surgery performed by the orthopedic surgeon), a determination that her left shoulder condition was a compensable injury that was related to her 2010 right shoulder Page: 15 Issue No. 64

16 injury, TTD benefits from November 18, 2011 and beyond based upon alleged disablement from both shoulder injuries, and assessed attorney's fees. On the other hand, Employer argued that claimant's 2010 right shoulder injury was temporary in nature and had resolved after claimant had received appropriate medical treatment. It also argued that claimant's left shoulder injury was unrelated to her employment. After a hearing, the ALJ concluded that claimant's left shoulder injury was not compensable but that her current right shoulder condition was as a result an aggravation of her compensable December 2010 right shoulder injury, with these findings being made based on the medical records from the orthopedic surgeon who had been treating claimant. The Appellate Division of the Board, however, placed more weight on the medical records from another reviewing physician that were tendered into evidence by the Employer that demonstrated a history of shoulder pain in this claimant that existed before claimant's 2010 injury and that opined that claimant's current right shoulder condition was unrelated to her 2010 injury in that the work injury had resolved approximately one year prior to claimant once again putting forth complaints about her right shoulder (and at a time when she was not working). Therefore, the Appellate Division reversed the ALJ's award granting the ALJ's Award of TTD benefits and continuing medical treatment for the right shoulder injury. Claimant appealed to the superior court, and the superior court reversed the Appellate Division and remanded the case back to the Board to address what the superior court characterized as a discrepancy between the Board's reversal of the ALJ's award when the ALJ had found that claimant's orthopedic surgeons was more credible than the medical opinions presented by the Employer. The superior court ordered the Appellate Division to either accept the ALJ's findings of fact or to provide a rationals as to why the treating physician's undisputed opinion was rejected. Employer appealed to the Court of Appeals of Georgia, and this court reversed the superior court. The Court of Appeals noted that the Appellate Division is authorized to substitute its own alternative findings of fact and to assess witness credibility, weight conflicting evidence, and draw different factual conclusions from those that were reached by the Administrative Law Judge who initially heard the dispute. The Court of Appeals further noted that the Appellate Division may disregard factual conclusions draw by the ALJ and substitute its own inferences in place of the inferences drawn by the ALJ. The Court of Appeals stated that it and the superior court did not have the authority to substitute themselves as a fact finding body and that these courts roles were not to examine whether the Board decisions are supported by a preponderance of the evidence but instead is to review "[t]he Board's award for the sole purpose of determining if its findings are supported by any record evidence." The Court of Appeals held that if the Board's findings are supported by any evidence they are conclusive and binding, "regardless of whether we would have reached the same result if given the opportunity to weigh the evidence in the first instance." The Court of Appeals held that there was evidence in the record to support the Appellate Division's reversal of the ALJ and thus that the superior court had erred in reversing and remanding the case back to the Board. Page: 16 Issue No. 64

17 FICTIONAL NEW ACCIDENTS AND CHANGES OF CONDITION FOR THE WORSE ABS Freight System, Inc. v. Presley, 330 Ga.App. 885 (2015). Overview: The superior court, in holding that it could see no reason as to why a fictional new accident is limited to whether there are new circumstances with respect to only the job and that a new circumstance could be in the form of a disabling accidental injury suffered by an employee after an original accidental injury had been sustained if there is a showing that the subsequent injury contributed to the worsening of the employee's original condition, reversed the Board's Award that had held that a claimant's claim for additional TTD benefits was time barred because claimant had sustained a change of condition for the worse rather than a fictional new accident. The Court of Appeals, however, held that the superior court had erroneously substituted its factual findings for those of the Appellate Division, which had findings that were supported by some evidence. Omer Presley ("claimant") worked for ABF Freight System, Inc. ("Employer") for approximately 19 years as a truck driver and a dock worker. On June 4, 2009 he sustained an injury to his right knee that was accepted as compensable and that resulted in his having a surgery on this knee. The injury caused him to miss work from June 4, 2009 through September 15, 2009, and he received temporary total disability benefits over this period of time. When claimant returned to full-duty work, he continued to perform his normal job duties, although his right knee continued to get worse because of arthritis, leading his treating physician to indicate on March 17, 2010 that claimant would eventually need a right knee replacement. On December 4, 2009, claimant sustained a left knee compensable injury that resulted in him being out of work from June 24, 2010 through September 18, 2010, which was a period during which claimant also received TTD benefits. Claimant returned to his regular-duty job on September 20, The same physician performed both knee surgeries on claimant and indicated a number of times that claimant would likely need a right knee replacement surgery. On February 4, 2011, claimant suffered a recurrent tear of the medial meniscus of his left knee, although he continued to work his normal job duties after this happened. Meanwhile, claimant's right knee pain continued to worsen, and he was advised by his doctor in February 2012 that he would need a right knee replacement surgery. Claimant underwent a total right knee replacement surgery on June 19, 2012, and he was placed on no work status until October 29, Claimant filed a hearing request on March 21, 2013, seeking the payment of TTD benefits from June 2012 through October Employer argued that claimant was not entitled to additional TTD benefits because it had been two years since he had last received indemnity benefits for his right knee injury and thus that his claim for benefits was barred by the statute of limitation found at O.C.G.A (b). Claimant on the other hand, argued that he had suffered a fictional new injury because his left knee injury had ultimately led to a worsening of his right knee injury, which caused him to stop working. The Administrative Law Judge and Appellate Division of the Board both held that claimant had sustained a change of condition for the worse with respect to his right knee and that Page: 17 Issue No. 64

18 his TTD benefits were thus time barred. Claimant appealed this decision to the superior court, and the superior court reversed and remanded the matter to the Board so it could consider additional evidence. The Court of Appeals granted Employer's application for a discretionary appeal. The Court of Appeals noted that a fictional new accident occurs when a claimant is injured on the job but continues to perform the duties of his employment until he or she is forced to cease work because of the gradual worsening of his or her condition that was at least partly attributable to his or her physical activity and continuing to work subsequent to the injury. The Court of Appeals stated that a change in condition for the worse, on the other hand, occurs when a claimant sustains an injury and is awarded compensation during his or her period of disability but then returns to regular employment and performs his or her normal duties or ordinary work but then, as a result of the wear and tear of ordinary life and the activities connected with performing his or her normal duties and not because of a specific job-related accident, the claimant's condition gradually worsens to the point that he or she can no longer continue to perform his or her ordinary work. The Court of Appeals noted that typically the distinguishing feature that will characterize a disability as either a change of condition for the worse or a fictional new accident is the intervention of new circumstances. The Court of Appeals further noted that whether there has been a fictional new accident or change of condition of the worse is a question of fact to be determined by Board. In reversing the Board, the superior court had determined that it could see no reason as to why a fictional new accident is limited to whether there are new circumstances with respect to only the job. In other words, the superior court indicated that a new circumstance could be in the form of a disabling accidental injury suffered by an employee after an original accidental injury had been sustained if there is a showing that the subsequent injury contributed to the worsening of the employee's original condition. The superior court remanded the case to the Board to make a determination as to whether claimant's left knee injury established "new circumstances" that caused a worsening of claimant's right knee condition that resulted in his disability in June The Court of Appeals held (with the Court noting that it was pretermitting the question as to whether the superior court departed from the previous cases distinguishing a fictional new accident from a change of condition for the worse) that the ALJ and the Board did consider whether claimant's left knee injury caused a worsening of claimant's right knee condition and found that it had not. The Court of Appeals noted that it and the superior court must construe the evidence in the light most favorable to the party prevailing before the Appellate Division and that determinations of credibility and the weight to be given testimony are matters for the ALJ and Appellate Division to decide. In reversing the superior court, the Court of Appeals held that the superior court had erroneously substituted its factual findings for those of the Appellate Division, which had been supported by some evidence. THE IMPLICATIONS OF THE TERMINATION OF AN EMPLOYEE AFTER A WORK INJURY Burns v. State of Georgia Department of Administrative Services et al., 331 Ga.App. 11 (2015). Page: 18 Issue No. 64

19 Overview: The Court of Appeals held (although this is not binding precedent) that when a claimant's job termination is related to the work injury that a claimant does not have to perform a diligent job search that is unsuccessful in order to receive TTD benefits. This is the case even if the claimant is not working modified duty if a claimant can show that he or she was terminated because of the work accident. LaVerne Burns ("claimant") sustained a work-related injury while working as a receptionist for the State of Georgia Department of Administrative Services ("Employer") in the Summer of 2009 when the chair in which she was sitting collapsed. Claimant received workers' compensation benefits, but she continued to work in her position until October 30, At that point, claimant was terminated and then sought temporary total disability benefits in a pro se capacity. The Administrative Law Judge found that claimant was a credible witness and that the reasons given by Employer to terminate claimant's employment were pretextual and that she was really terminated because of her work injury. Employer appealed the Award of TTD benefits to the claimant to the Appellate Division of the Board, which affirmed the ALJ. Employer appealed to the superior court, which first held that claimant's contention that Employer had not timely filed its appeal to the superior court was incorrect in that it had been filed with the Board within 20 days of the Board's Award, pursuant to O.C.G.A (b). The superior court further held that claimant was precluded from receiving TTD benefits because she was required to show that she had either searched for another job after being terminated or that she had been working in a restricted capacity when her employment was terminated, with the superior court determining that claimant made neither showing. The superior court did not reach a decision as to whether the reason claimant was fired was pretextual because it determined that this was not relevant to its decision. Claimant argued to the Court of Appeals of Georgia that the superior court improperly set aside her Award. The Court of Appeals noted that a superior court may set aside findings made by the Board only if it is found that: "1) The members acted without or in excess of their powers; (2) The decision was procured by fraud; (3) The facts found by the members do not support the decision; (4) There is not sufficient competent evidence in the record to warrant the members making the decision; or (5) The decision is contrary to law. O.C.G.A (c). In this case, the superior court had held that the Board's decision lacked sufficient evidentiary support and was contrary to law. The Court of Appeals held that this decision was in error for two reasons. First, the Court of Appeals noted that the February 26, 2013 hearing transcript was not in the record and that in reviewing the Board's award of workers' compensation benefits the superior court was required to "construe the evidence in a light most favorable to the party prevailing before the State Board." The Court held that without a transcript of the relevant evidentiary hearing that the superior court could not perform this function and that it was an error for the superior court to set aside the Board's decision under these circumstances. The Court of Appeals also noted that in normal circumstances the absence of a transcript would mean that an appellant had not carried his or her not burden to show error below, but Page: 19 Issue No. 64

20 the Court of Appeals stated that in the workers' compensation context there is authority for the proposition that the State Board of Workers' Compensation has the burden of perfecting and including the entire record, although there is contrary authority as well. The Court of Appeals noted that it was not resolving these contrary lines of opinion in the case before it. Second, the Court of Appeals held that the superior court misconstrued the relevant law in setting aside the award and in holding that claimant was required to show that either she had searched for another position or that she had been working in a restricted capacity when her employment was terminated. The Court of Appeals noted that in Maloney v. Gordon County Farms, 265 Ga. 825 (1995) the Supreme Court of Georgia held that a claimant must show a diligent but unsuccessful effort to secure suitable employment following termination when this termination is unrelated to the work injury. The Court of Appeals noted that in Padgett v. Waffle House, 269 Ga. 105 (1998) it was held by the Supreme Court of Georgia that when a job termination is related to the work injury that a claimant does not have to perform a diligent job search that is unsuccessful in order to receive TTD benefits and that this would include the situation were the termination of claimant is claimed to be unrelated to the work accident but is really pretextual. The Court of Appeals held that although Padgett discussed the above principles in the context of modified job duties that it saw no basis that the Padgett rule should not also apply to employees who could perform their job duties without modification if the Board determined (as it had here) that an employer refused to provide work to an employee due to the work-related injury. The Court of Appeals held that the superior court had thus erred by not viewing the pretext issue to be relevant to its decision, and thus the Court of Appeals reversed and remanded the case to the superior court for proceedings not inconsistent with its opinion, which it indicated may include the determination of the reasons for the absence of the relevant hearing transcript and whether to draw any presumptions from that absence and to address whether there was any evidence in the transcript (when it was received) to support the Board's findings that claimant was terminated for pretextual reasons. Since Judge William Ray concurred in judgement only and made this a 2-1 decision, this case is considered persuasive precedent rather than binding precedent. CONSTITUTIONAL CHALLENGES TO THE WORKERS' COMPENSATION ACT Louise Shorter Barzey v. City of Cuthbert, 295 Ga. 641 (2014). Overview: In a matter of first impression, the Supreme Court of Georgia held that it was persuaded by the reasoning of authority from different jurisdictions and consequently held that "because the Workers' Compensation Act's differing treatment of dependent and nondependent heirs is not irrational and serves the legitimate government purpose of workers' compensation, the Act's limitation on recovery by non-dependent heirs does not violate the due process or equal protection rights guaranteed by the United States Constitution." Deron Shorter was an employee of the City of Cuthbert ("City"). In 2010, he was killed while acting in the course of his employment Page: 20 Issue No. 64

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