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Thursday, March 22, 2018

At some point you just have to ask "Who ties your shoes for you?" #TheCompChronicles




"Skedsvold and White
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Do Your Job (correctly) - a new Workers' Compensation case from the Georgia Court of Appeals

If you are a parent, especially a parent of small child, you know the feeling when you want to teach the child some valuable lesson but you just do not have the time to wait. So instead you just do it yourself to save the time. Sooner or later though, your child has to learn the lesson, has to tie his own shoes or learn to clean up his own mess even if that means it takes longer for you to require them to do it. It seems as if the Georgia Court of Appeals, or at least one panel of the Court, has reached that stage. You may notice that many, if not most, of the Workers’ Compensation Cases coming out of the Georgia Court of Appeals relate to the “any evidence rule.” In short, this rule holds that the Superior Court MUST AFFIRM the factual findings of the State Board of Workers’ Compensation if there is ANY evidence to support it. The thought behind this is that the State Board is in a better position to judge the credibility and the demeanor of witnesses, and that appellate courts are not particularly well placed to make those judgement calls. The appellate courts are supposed to rule on errors of law. On March 13, 2018, the Court of Appeals issued its decision in Amguard Insurance Company v. Kerkela ___ Ga App. ___, ___ SE 2d ___, 2018 Ga. App. LEXIS 182. The injury to Mr. Kerkela was not originally accepted as compensable, indeed not accepted until one week before the scheduled hearing, at which time income benefits were paid, medical treatment was authorized and the Employer/Insurer agreed to pay a certain amount of assessed fees on the benefits paid as of the time of acceptance. The dispute involved whether ONGOING assessed fees to the Attorney for Mr. Kerkela. The Administrative Law Judge and the Appellate Division for the State Board of Workers’ Compensation thought the Employer/Insurer had paid enough in assessed fees and denied further assessments based on the past conduct. The Superior Court reversed that award finding that the State Board had “misinterpreted the evidence.” One can almost feel the eyeroll in the text of the opinion. After dutifully, if not perfunctorily, reciting the “any evidence” standard and giving enough facts so that the reader can understand the context, the Court gets down to the business of vacating the Superior Court’s Opinion. Ordinarily that would be the end of it, the Court of Appeals cleans up the mess and all is done. However, this panel, seemed to be intent on NOT having to tell future litigants (or Superior Courts) to clean up their rooms and so decided not only to vacate the decision but to remand the case to the Superior Court to fix the award by applying the correct standard of review. The Court’s language seems as if it was derived from a parenting handbook: "We take this time to mention to trial courts and litigants that it might seem as though we are putting form over substance when we remand cases such as this for the trial court to apply the proper standard, rather than just reviewing the evidence ourselves under the correct standard. However, the application of the correct standard underpins our system of appellate review and ensures that the fact finder be that a trial court, administrative tribunal, etc. — is given the appropriate amount of deference as the entity that is tasked with fact finding. Therefore, we find it appropriate and important to insist that it be applied in the first instance." If this particular panel is any indication there may be fewer workers’ compensation cases coming out of the Court in the future.


"Skedsvold and White
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