JURISDICTION DENIED FOR WORKER'S DEATH FROM MESOTHELIOMA

Once in a while a case comes along when you get the right result but it still just doesn’t feel right. The Georgia Court of Appeals recently issued such a ruling in the case of Davis et al. v. Louisiana-Pacific Corp. 2018 Ga App. Lexis 132 (2018) . The opinion, issued on February 27, 2018, dealt with the claim of John Davis. Mr. Davis worked for Louisiana-Pacific (LP) in Alabama for more than 13 years. He resigned his employment in 1998 and moved to Georgia and all seemed well. He was diagnosed in 2015 with Mesothelioma apparently as a result of his work with Louisiana-Pacific. He did NOT work for LP in Georgia and did not work for them after 1998. After his diagnosis in 2015, Mr. Davis filed for worker’s compensation benefits in Georgia and his claim was carried on by his widow and minor child after his death. For some reason, likely having to deal with Alabama’s worker’s compensation statute, no claim for benefits was ever filed in Alabama. That statute seems to require that the claim be filed within two years of the last injurious exposure. In this case, that would have been 2000. Georgia’s statute, however has a period of 7 years from the last injurious exposure but that limit is extended by allowing filing within one year after disablement following diagnosis. By the year 2000 (for the last injurious exposure under Alabama law or 2005 (in Georgia), Mr. Davis did not likely have symptoms of the disease due to its extended period of latency between exposure and symptoms. The problem for Mr. Davis and his family is that Georgia did not have jurisdiction to hear his claim. Even under the most sympathetic reading of Georgia Statutes, it really was not even a close call. Mr. Davis’ counsel, in that sense, really only had one bite at the worker’s compensation apple and that would be in Georgia. The all issues statute of limitations for Georgia Worker’s Compensation claims is found in O.C.G.A. §34-9-82 and requires that a claim be submitted by the filing of a WC14 notice of claim/request for hearing, within one year of the date of injury or last remedial medical treatment provided by the employer. In Mr. Davis’ case, however, he wasn’t even aware of the condition until 2015. Thereafter, he submitted a claim under GEORGIA law seeking compensation under the Occupational Disease statute, O.C.G.A. §34-9-281. That statute provides for a much longer statute of limitations – “within one year after the date the employee knew or should have known through the exercise of reasonable diligence, should have known of the disablement and its connection to employment.“ The Georgia Court of Appeals held that the dismissal of the claim was proper because the injury did not occur in Georgia. Mr. Davis’ family had hoped that the wording of the Georgia Occupational Disease statute might help. They pointed to the language in O.C.G.A. §34-9-281 (a) providing “…the disablement or death of an employee resulting from an occupational disease shall be treated as the occurrence of injury by accident…” However, they ignored the preface to that very sentence which required that both the “employer and employee are subject to this chapter…” Noting that Mr. Davis never worked for LP in Georgia, the Court reasoned that LP was not subject to this chapter and thus the Court had no jurisdiction. The Davis family asserted that there was no injury until the diagnosis and that this diagnosis occurred in Georgia. The Court found, however, that there must be an INJURY BY ACCIDENT and that the terms are not synonymous. Nor could the Davis family fall within the expanded jurisdiction allowed under O.C.G.A. §34-9-242 which provides for jurisdiction in Georgia for an injury occurring outside of the state of Georgia (injuries WITHIN the State of Georgia always qualify for jurisdiction), since Mr. Davis’ contract of employment was made in Alabama. The last ditch effort to make this a compensable claim in Georgia was the appeal to the “liberal construction of the Act found in O.C.G.A. §34-9-23. However that statute makes clear that the Worker’s Compensation Act is to be applied impartially to both employers and employees. This statute is only intended to encourage the State Board to liberally construe the act for the purposes of bringing more parties within its scope. The Court of Appeals decision means then that the “liberal construction” does not extend to waiving the requirements for personal jurisdiction over the parties. While the outcome for the Davis family is understandably disappointing, the result means that their remedy does not lie within the worker’s compensation system, at least not in Georgia, but instead in a Tort claim.


"Skedsvold and White
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