Georgia Top Cases (updated 9/8/2009)

Georgia Top Cases (updated 9/8/2009)

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Claimant must give notice of the specific issues he seeks to litigate, and failure to do so bars the claim. The Kroger Company v. Wilson, 2009 Ga. App. LEXIS 795 (July 8, 2009). A driver for an employer applied to have his job-related back injuries designated as "catastrophic" so that he could resume receipt of workers' compensation income benefits that otherwise were exhausted. An administrative law judge (ALJ) found that the claim was time-barred, but the appellate division of the workers' compensation reversed. The trial court () affirmed the board's decision. The employer and its insurer appealed. The driver filed an Employee's Request for Catastrophic Designation form, or WC-R1CATEE, over five years after his last income benefits payment. The ALJ found that the claim was time-barred under O.C.G.A. § 34-9-104(b). The appellate court agreed. Because the driver sought additional income benefits, he had two years from the date of his last income benefits payment to file his claim for a catastrophic injury designation, but failed to do so. The driver argued that his earlier filing of the WC-14 form tolled the statute of limitation, because § 34-9-104(b) only required that a party apply for a change of condition within two years of the last benefits payment. However, the only benefits sought in the driver's WC-14 form were temporary disability benefits. There was no request for a catastrophic injury designation. Nothing in the WC-14 form notified the employer that a catastrophic injury designation was sought. In fact, the driver was still working for the employer when he filed the form. Also, the use of a WC-14 claim form, rather than the WC-R1CATEE form, suggested that the driver was not seeking a catastrophic injury designation when he filed it. The claim was time-barred. The trial court's order affirming the decision of the appellate division was reversed.

On Appeal From Appellate Division, Superior Court May Not Strike Erroneous Findings; It Must Affirm, Reverse, or Remand.  Home Depot v. Pettigrew, 2009 Ga. App. LEXIS 629 (June 2, 2009).  Pettigrew twisted her ankle at work in 2003 and was eventually required surgery.  She also began to complain of back problems which she and her treating physician attributed to changes in her gait as a result of the ankle injury.  Home Depot paid temporary total disability benefits.  Pettigrew then requested that her injury be designated as "catastrophic" as that term is defined by OCGA § 34-9-200.1.  Following a hearing the law judge found that her ankle injury was "catastrophic", but further found that her back problems were degenerative and not due to the twisted ankle accident or its sequelae.  Pettigrew appealed the portion of the order pertaining to her back injury, contending that the issue was not properly before the law judge, that the notice she had received referred only to the catastrophic injury issue.  The Appellate Division found that Pettigrew herself had raised the issue of the compensability of her back problems in her form requesting catastrophic designation.  Pettigrew appealed to the superior court, which struck the factual finding that Pettigrew's back problems were not a compensable injury, concluding that the issue was not properly before the law judge.  On further appeal, the appellate court reversed and remanded.  The court observed that while the superior court correctly determined that the issue of the compensability of Pettigrew's back injury was not properly before the ALJ or the Appellate Division, the superior court, upon appeal, was only authorized to (a) affirm, (b) reverse, or (c) under appropriate circumstances, remand to the board for further hearing.  The superior court was powerless to strike one of the law judge's findings.  See generally Larson’s Workers’ Compensation Law § 130.03.

Subrogation Choice-of-Law Tied to State Where Workers' Compensation Benefits Were Paid.  Liberty Mut. Ins. Co. v. Roark, 2009 Ga. App. LEXIS 483 (April 23, 2009).  An insurer appealed a judgment of a trial court, which held that it had no subrogation rights under O.C.G.A. § 34-9-11.1(b) against an insured employee's settlement of a personal injury action, arising from a vehicle collision. The trial court had granted judgment on the pleadings to the employee upon holding that law applied to the situation.  The insured's employee was involved in a vehicle collision with a driver in , and the employee received Tennessee workers' compensation benefits paid by the insurer. Thereafter, the employee and his wife filed suit in against the driver for personal injuries and loss of consortium. The insurer filed an intervenor complaint in order to protect its subrogation lien created by § 34-9-11.1(b). The driver and the employee agreed to settle the matter, but the employee and the insurer could not resolve a dispute as to which state's law applied. After procedural wrangling, the trial court held that law applied and it granted judgment on the pleadings to the employee. On appeal, the court reviewed the competing conflict of law statutes under § 34-9-11.1(b) and Tenn. Code Ann. § 50-6-112(c). It held that as the employee was injured in and was entitled to receive workers' compensation benefits in , workers' compensation law governed the subrogation claim. As workers' compensation benefits were not paid under law, the insurer had no subrogation rights against the employee's settlement.  The court affirmed the judgment of the trial court.  See generally Larson's Workers' Compensation Law §§ 116.01, 143.02.

Georgia Worker Seeks Additional Compensation After Being Burned by a Heating Pad. A worker fractured his left hip in a work-related auto accident. Almost two years later, while using a heating pad to alleviate soreness to his hip, he fell asleep and sustained third-degree burns to the hip. He sought additional benefits for the "superadded" injury, contending it was "related to" his earlier work-related injury, that the use of the heating pad was reasonable and necessary for the hip injury. The Board reversed, finding that the burn did not result from prescribed medical treatment and was not a natural consequence of the hip injury.  On further review, a state superior court ruled that the burn injury was compensable because the heating pad was used as "a consequence" of the original hip injury.

In City of Atlanta v. Roach, 2009 Ga. App. LEXIS 440 (April 8, 2009), the Court of Appeals of Georgia (Second Division) held that as there was some evidence to support the Board's findings that the heating pad, not having been prescribed by a physician, was not a reasonable and necessary treatment under O.C.G.A. § 34-9-200(a), and that the burn arose from a combination of the worker's use of the pad and falling asleep while lying on it, the superior court was bound by the Board's findings. The appellate court reversed the judgment of the superior court insofar as it ruled that the worker sustained a superadded injury.

From my perspective, this is admittedly a close case.  Under the "Direct and Natural Consequence Rule" [see generally Larson’s Workers’ Compensation Law § 10.01], a subsequent injury--whether an aggravation of the original injury or a new and distinct injury--is compensable if it is the direct and natural result of a compensable primary injury.  Two factors seem to have been important in breaking the causation chain here: (1) the fact that the burn occurred two years after the compensable injury, and (2) the fact that no physician had prescribed or suggested heat treatment to the hip.  Practitioners should note that had the Board made its factual determination in favor of the injured employee, the Court of Appeals would likely have found substantial evidence supported that decision as well. See generally Larson’s Workers’ Compensation Law §§ 10.01, 10.04, 130.05. 

Property Owner/Contractor May Utilize Exclusiveness Defense in Subcontractor's Employee's Tort Action.  Creeden v. Fuentes, 2009 Ga. App. LEXIS 143 (February 13, 2009).  A worker sued defendants, a construction company and its officer, alleging they were liable for injuries he suffered at a construction site. Defendants moved for summary judgment, arguing they were entitled to tort immunity under O.C.G.A. § 34-9-8 and the worker's exclusive remedy was under the Georgia Workers' Compensation Act. The trial court denied the motion. Defendants appealed.  The company contracted to build a home for a customer. The worker was employed by a subcontractor on the project when he fell through an elevator shaft. He filed the instant suit after receiving workers' compensation benefits from his employer. Defendants argued that as the company was the worker's statutory employer under § 34-9-8, they were immune from tort liability under O.C.G.A. § 34-9-11 of the Act. The appellate court agreed. Although the company retained ownership of the property, it was working at the behest of the customer, who had contracted with it to build his home according to his specifications. Thus, even though the company was the owner, it was also acting as a contractor for the customer, performing work not only for its own benefit, but expressly for the customer's benefit.  It had certain continuing obligations to the customer with regard to the property that it owned. Accordingly, the trial court erred in holding that the company was not entitled to statutory employer status and the resulting tort immunity afforded by the exclusive remedy provision of the Act. As the officer was the company's alter ego, he was also entitled to immunity under § 34-9-11.  The judgment was reversed.  See generally Larson’s Workers’ Compensation Law § 111.04.

New Carrier, Not Old, Responsible For Disability Benefits Where Initial Injury Resulted in Medical Care Need, But No Loss of Time.  Laurens County Bd. of Educ. v. Dewberry, 2009 Ga. App. LEXIS 171 (February 19, 2009).  A county board of education and its current workers' compensation insurer sought review of a decision of a Georgia superior court, which affirmed the decision of an administrative law judge and the Appellate Division of the State Board of Workers' Compensation that a custodian experienced a fictional new accident and that the current insurer, rather than the prior workers' compensation insurer, was responsible for the claims.  The custodian suffered a work-related injury to his knee on August 1, 2000. The prior insurer paid all of the custodian's medical bills but did not pay any income benefits or any permanent partial disability income benefits; the custodian returned to work on February 2, 2002. After the current insurer assumed insurance responsibility for the board in 2004, the custodian sought additional medical treatment for knee pain. After a doctor recommended knee replacement surgery based on the initial injury and the current insurer stopped paying for medical treatment, the custodian was forced to stop working on November 18, 2005, and filed a workers' compensation claim. On appeal, the court affirmed. While the current insurer argued that the custodian experienced a change in condition for the worse under O.C.G.A. § 34-9-104 and, thus, the prior insurer was responsible, the custodian continued to perform his duties without receiving any income benefits until he was forced to cease work in 2005 due to the gradual worsening of his condition that was at partially attributable to his physical activity in continuing to work. The voluntary payment of medical benefits did not constitute an award.  The court affirmed the superior court's decision.  See generally Larson’s Workers’ Compensation Law § 131.03.

Worker's Application for Catastrophic Injury Designation Found Untimely.  Tara Foods v. Johnson, 2009 Ga. App. LEXIS 346 (March 26, 2009).  The employers of an injured worker appealed after a Georgia superior court reversed a decision of the appellate division of the state board of workers' compensation. That decision adopted an administrative law judge's (ALJ) decision that the worker's application for catastrophic injury was untimely under O.C.G.A. § 34-9-104(b).  The worker's request for a catastrophic injury designation was governed by the two-year statute of limitations set forth in O.C.G.A. § 34-9-104(b). It was undisputed that the worker received her last payment of income benefits on August 28, 2001, and she did not file a WC-14 requesting a hearing on her application for catastrophic designation until September 15, 2006. As § 34-9-104(b) required that the application be filed within two years of the last payment of income benefits, the application was untimely. A 2002 WC-14 the worker filed failed to meet the requirements for an application for a decision under § 34-9-104(b), as it only gave notice of a claim for a change in condition. A second WC-14 form filed in 2005 did not raise the issue of a catastrophic designation. Only the 2006 WC-14 properly raised the issue of catastrophic injury status, and it was filed too late.  The appellate court reversed the superior court's order.  See generally Larson’s Workers’ Compensation Law § 126.01.

Worker's Tort Claim for Intentional Infliction of Emotional Distress Held Barred by Exclusivity.  Coca-Cola Co. v. Parker, 2009 Ga. App. LEXIS 365 (March 26, 2009).  A former employee filed suit against defendants, her former employer and former supervisor, for intentional infliction of emotional distress. Defendants moved for summary judgment on several grounds. A Georgia trial court denied the motion, but issued a certificate of immediate review. Defendants' application for interlocutory appeal was granted.  The employee testified at deposition that she suffered a physical injury in the course of her employment and that as a result she was put on certain physical restrictions. Following that physical injury, the employee suffered a psychic injury, also in the course of her employment and related to her physical injury, when the supervisor requested that the employee perform duties that exceeded the employee's physical work restrictions. Under those facts, the employee's claim for mental damages was ancillary to a physical occurrence arising in the course of employment. The employee's tort claim was therefore barred by the exclusivity provision of the Workers' Compensation Act, O.C.G.A. § 34-9-11(a), and the trial court erred in denying defendants' motion for summary judgment on that ground.  The appellate court reversed.  See generally Larson’s Workers’ Compensation Law § 104.05.

Knee Injury When Custodial Worker Bent to Pick Up Diuretic Pill on Floor Arose Out of and In the Course of Employment.  Harris v. Peach County Bd. of Comm'rs, 2009 Ga. App. LEXIS 114; 2009 Fulton County D. Rep. 510 (February 11, 2009).  The Superior Court of Peach County (Georgia) concluded that the administrative law judge and the State Board of Workers' Compensation Appellate Division misapplied the legal standard in determining whether an employee's injury arose out of her employment and reversed the Board's award of benefits. The employee appealed, seeking reinstatement of the Board's decision.  An employee's accidental injury had to arise both out of the course of the employment and in the course of the employment, O.C.G.A. § 34-9-1(4). The appeals court found that because the evidence when construed in the employee's favor authorized the Board to find that her knee dislocation arose out of her employment, the superior court erred in reversing the benefit award. The case turned on whether the employee was performing a job duty at the time of the accident. It was undisputed that she sustained the injury to her knee when she bent over to pick up her diuretic pill from the floor. Thus, the causative danger was bending over to remove an object from the floor. It was undisputed that her duties as a custodian specifically included removing debris from the floor. It was also undisputed that her supervisor required and expected her to remove the pill from the floor, regardless of whether it was her own pill. It followed that Board was authorized to find that the causative danger was not independent of the employment relationship. Rather, there was evidence that bending over to remove an object from the floor was incidental to the character of her employment as a custodian.  The judgment was reversed.  See generally Larson’s Workers’ Compensation Law § 43.01, 43.02.

Claimant’s request for additional income benefits based on a Request for Catastrophic Designation (RCD) is a question of law and subject to the two year statute of limitations.  Williams v. Conagra Poultry of Athens, Inc., 295 Ga. App. 744, 673 S.E.2d 105 (Jan. 28, 2009). An employee sought review of a decision from a Georgia trial court, which affirmed a denial by the Appellate Division of the State Board of Workers' Compensation as to the employee's request for catastrophic injury payments pursuant to O.C.G.A. § 34-9-261. The employee injured her neck and shoulders while working at a chicken plant. She received temporary total disability benefits for the maximum allowable period. She requested that her injury be designated "catastrophic" on two occasions, both of which the Board denied. Based on advice from the Board, the employee submitted a third request for CI designation and she included work restriction information. The Board approved the request based on the additional information. The employer sought a hearing before an administrative law judge (ALJ). Thereafter, the employer agreed to the CI claim for medical benefits only. The ALJ denied the CI claim for additional income benefits upon finding that the request was time-barred pursuant to O.C.G.A. § 34-9-104(b). The ALJ's decision was affirmed by the Board and then the trial court. On further review, the court noted that the employee's third request for CI designation constituted a request for a change in status under § 34-9-261 that was plainly subject to § 34-9-104(b). As the request was made after the two-year limitations period contained therein, it was untimely and time-barred. The court affirmed the decision of the trial court.