In the case of Decostar Industries v. Juarez, decided by the Georgia Court of Appeals on July 5, 2012, found in favor of the employer on the basis that the employee did NOT have a new accident. Beyond that simple finding, though, is a hidden warning to Employers when making claims decisions and to their attorneys in litigation strategy. Ms. Juarez worked a production line picking up automotive bumpers weighing approximately 15 pounds from floor level to chest/bench level as well as other duties in preparing those bumpers. In August 2009, the employee began feeling pain in her right shoulder and arm. As her employer did not offer medical treatment, she went to her personal physician and was later referred by that physician to an Orthopedist,Dr. Colpini. She treated with Dr. Colpini who found evidence of a pre-existing condition which was aggravated by her job. For some reason she also treated with another physician who removed a Lipoma from her right shoulder in October 2009. There is no further discussion regarding that other physician, how Ms. Juarez came to be treated by that other physician or for how long she treated. Those factors may be important in the warnings for employers that we'll discuss in later in this post. Ms. Juarez resigned her position on April 13, 2010 reportedly due to her right shoulder. The record is silent as to whether she had any lost time related to that condition before her resignation. At some point, likely this same time, Ms. Juarez retained an attorney and was likely referred by that attorney to Dr. Robert Karsch. Not surprisingly, Dr. Karsch disagreed with Dr. Colpini stating that the direct cause of Ms.Juarez's shoulder pain was her job duties as opposed to her condition merely being an aggravation of a previous condition. Again, not surprisingly and again, likely at the behest of her attorney, Dr. Duncan Wells reviewed the records and agreed with the opinion of Dr. Karsch. The State Board of Workers' Compensation found adopted Dr. Colpini's view and found an aggravation of a pre-existing condition. The State Bosrd further denied income benefits as light duty work remained available to Ms.Juarez after her resignation. This would tend to suggest that the Employer accommodated any previous restrictions related to her aggravation and that there was in fact, no lost time. The medical expenses related to the treatment and opinions of Dr. Karsch and Dr. Wells were the left to Ms. Juarez. The Superior Court did not agree with the State Board and found that the Board was incorrect and that there was no evidence of a pre-existing condition. The Court of Appeals decided that the Superior Court was wrong and that the State Board was correct in that Dr. Colpini's records refer to the pre-existing condition so there was some evidence (any evidence is sufficient to require affirmance if the issues are factual rather than legal error) to support the award of the State Board. In other words, the Superior Court said that there was no evidence to support the State Board and so the Employer had a very low bar to clear in showing that there was some evidence, any evidence, and that the Superior Court was wrong as a matter of law. The Court also disagreed with the Superior Court and ruled against the Employee's request to have Dr. Karsch designated as the treating physician.
The Employer in this case dodged a bullet in this decision. The court made note of the Employer's failure to offer medical treatment to the employee and the employee's treatment with her personal physician and then with. A doctor to whom she was referred by her personal physician. By failing to offer medical treatment for a compensable claim, the employer cedes control of medical treatment and can no longer insist that the employee treat with panel providers. Remember, the provision of medical treatment is not an admission of liability. The employer was indeed fortunate that the employee treated first with her personal doctor and later with Dr. Colpini to whom she was Apparantly referred by her own doctor. Had the employee treated first with Dr, Karsch, the state of the medical evidence in the record would likely have looked much different and there might very well have been no evidence of the aggravation upon which the State Board ruled. Further, the employee's action in treating with the other physician for removal of the Lipoma for that surgery MAY very well have prevented the employee from subsequent changes of physician.
The opinion contains warnings for the attorneys too. The attorneys for Ms. Juarez contended that the State Board was wrong in failing to order the change of physicians to Dr. Karsch arguing that the employer failed to follow the notice and response procedures in 34-9-200 (b). However, as the attorney for Ms. Juarez failed to raise that issue at trial and could not raise it for the first time on appeal. For the attorneys, the warning is, pay attention to your pleadings, no what relief you are seeking (abd why) and what defenses are available to you and your opponent.
"Skedsvold & White
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