New Drug Test Case from the Georgia Court of Appeals

On June 1, 2018, the Georgia Court of Appeals published its decision in the case of Lingo v. Early County Gin, Inc., ___Ga. App. ___, 2018 Ga. App. LEXIS 328 (2018) and it may prove to be a significant decision for how drug testing will be done and viewed by the Georgia Courts in the case of an on the job injury. The Background: Mr. Lingo worked for a Cotton Ginning company as a "module feeder." His job was to direct drivers backing their large module trucks (filled with Cotton Bales) into a loading dock area where he would then assist them with unloading of the modules of cotton for the ginning (removal of the seeds from the cotton fiber) process. Mr. Lingo was injured on November 20, 2014 when one of the trucks crushed him against the loading docks. Lingo did not see the truck as he was facing the loading dock and reportedly did not hear the truck due to two factors: 1) the truck did not have a working back-up beeper; and 2) Lingo contends that he could not hear the truck over the sound of the cotton gin machinery running nearby. He was evacuated to a hospital in Dothan, Alabama where he was taken into surgery. While in surgery, a technician who was not permitted to enter the operating room, asked a nurse inside of the O.R. for a urine sample from Mr. Lingo. The nurse brought the sample to the technician where it was marked, bagged and sent for processing. The urine sample was positive for Marijuana metabolites. The Trial: There was conflicting evidence as to whether Lingo should have known of the presence of the truck as there was a dispute as to whether it was Lingo that directed the truck to the loading dock as part of his job. Lingo offered expert testimony in the form of a sound study regarding the noise in the area of the loading dock and from a forensic toxicologist regarding the drug test. The Sound Study Expert testified that the sound of the module truck was not distinguishable from the background noise of the cotton gin. The claimant also pointed out that the employer had offered ear plugs to protect Lingo's hearing but Lingo was not wearing them at the time. The claimant's other expert questioned whether the positive drug screen was evidence of intoxication pointing out that the marijuana metabolizes out of the blood within 30-90 minutes but will remain in the urine for days or even weeks after last consumed and so could not form the basis of a valid test. The Employer presented evidence from a co-worker who admitted to smoking marijuana with Lingo on a daily basis, who claimed that Lingo always kept a bag of marijuana on him and who claimed that Lingo "must have been really 'messed up' not to hear the truck's beeper which he argued Lingo should have heard if he was not texting on his phone." There was no evidence of marijuana or drug paraphernalia recovered from Lingo's clothing. The ALJ did not believe the co-employee, for reasons not stated in Court of Appeals opinion, but which undoubtedly included the fact that the involved vehicle did not have a working back up beeper as contended by the co-employee witness. The ALJ found the claim to be compensable and rejected the employer's drug test defense as "the lab technician did not observe the sample being taken and thre was no testimony or other evidence establishing this initial link in the chain of custody." [Let's put a pin in that and come back to it.] The Appeals: The Appellate Division of the State Board of Worker's Compensation reversed and found the drug test to be sufficiently reliable to permit the employer to rely on the presumption afforded to the employer and against compensability in the event of a positive drug screen. The Board also noted that the evidence of whether Lingo could have heard the truck was conflicting. The Claimant appealed to the Superior Court which affirmed based on the any evidence Rule (which provides that the Courts above the State Board's Appellate division must affirm the Board's ruling if there is ANY evidence to support that ruling. The Court of Appeals is also bound by the any evidence but noted that this does not apply to errors of law. The Ruling: The Court of Appeals was bothered by the chain of custody, noting that the Drug Free Workplace Act found at O.C.G.A. § 34-9-415 provides standards for the collection of bodily fluid samples for testing and that those standards are incorporated into the wilfull misconduct statute, O.C.G.A. § 34-9-17, upon which the employer relied in its defense. In pertinent part,O.C.G.A. § 34-9-415, provides: All specimen collection and testing under this Code section shall be performed in accordance with the following procedures: … (5) A specimen for a test may be taken or collected by any of the following persons: (A) A physician, a physician assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner, or a certified paramedic who is present at the scene of an accident for the purpose of rendering emergency medical service or treatment; (B) A qualified person certified or employed by a laboratory certified by the National Institute on Drug Abuse, the College of American Pathologists, or the Georgia Department of Community Health; (C) A qualified person certified or employed by a collection company. " That statute also provides for the chain of custody to be maintained. What troubled the Court of Appeals was that the person who took the urine sample from Lingo was never identified and their qualifications never compared with the list of required qualifications found within O.C.G.A. § 34-9-415. Remember that the technician did not go into the operating room and was handed a sample by a nurse who WAS in the operating room. Writing for the Court, Judge Ellington (Now Justice Ellington on the Georgia Supreme Court) found that "the person who actually drew the urine sample could have been a nurse's assistant, an intern, or some other hospital employee who did not meet the statutory criteria. In this case, the Employer's failure to establish that a person authorized under the Code Section to collect the sample is fatal to the Employer's ability to rely upon the rebuttable presumption in OCGA § 34-9-17 (b) (2)." The Court noted in a footnote to the decision "If, for example, the Employer in this case had identified everyone in the operating room as qualified to draw the sample, then it would be reasonable to assume that the person who drew the sample was qualified. In this case, though, there is no evidence establishing who was in the operating room." The Impact: 1) Urine Samples Advocates for injured workers in Georgia have long argued that a urine sample is simply not competent evidence of impairment given that the fat soluable molecules of marijuana metabolites will remain in the urine for days and weeks after last usage. Once again, the Georgia Courts have rejected that assertion. The statute is clear: bodily fluid samples (saliva, urine or blood) that test positive for illicit drugs or for prescribed drugs not taken in compliance with a prescription afford the employer with a presumption that the injury was caused by the intoxication or impairment of the injured worker. Such injuries remain NOT compensable. The Employee then has the obligation to put forth evidence to rebut the presumption. That evidence must show what ACTUALLY happened and not just what MAY have happened. Had the employer been given the presumption afforded by O.C.G.A. § 34-9-17, it is unlikely that the Sound Study expert would have made the difference. 2) Chain of Custody: In all cases the chain of custody is necessary for the employer to have benefit of the presumption against compensability. Ordinarily, this chain of custody is started in the physician office when the employee hands the sample to a nurse who seals the sample with an identifiable code on that seal which matches the coding on the document to which the employee and the physician office both affix their signatures. In Lingo, it was this initial step which was missing. Thereafter the lab which retrieves the sample signs the same document and the chain of custody continues through the initial testing and all the way through confirmation testing. The significance of the Lingo ruling is that the Court recognizes that in some LIMITED circumstance, obtaining the signature may not be possible but that the defect can be overcome by other evidence and other testimony. While having the signature on the dotted line is best, we as litigants don't always get our evidence in the best of circumstances.


"Skedsvold and White
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Fictional Accident DENIED

In our discussions of New Accident versus Change of condition, we have tried to distinguish between the two. A recent case from the Georgia Court of Appeals highlights the fact that the concept of a "new accident" needs some attention as well. In JMJ Plumbing v. Cudihy (Ga. Ct. App. A12A1348, 11/30/2012) the Court was presented with an appeal by an Employer that won its case at the State Board's Appellate Division only to have the Superior Court reverse. First, anytime you have that situation arise, the Superior Court's ruling is in jeopardy if there is ANY evidence to support the finding of the SBWC. In short, all the Superior Court can do is to see if the correct legal standard was applied. If so, the award should be affirmed even if the Superior Court disagrees with the facts. As to the issues in Mr. Cudihy's claims, the Court of Appeals found that the SBWC had applied the correct standard and reversed the Superior Court. Claim denied. So, now that you know the result, what happened? Mr. Cudihy was a plumber who on 9/2/2008 alleged that he felt a sharp pain in his back while digging in the course of his employ. The problem is that he did not report the injury to his employer but did seek medical treatment after work. During that visit, though, he mentioned that he developed back pain over the weekend and experienced pain that morning while digging. His next medical treatment was in 1/2009 and then in 3/2009 when he sought chiropractic care. He saw an orthopedist in May and June 2009 and was told that he should work at light duty and that surgery might be warranted. The injury was first reported to his employer on 6/25/2009. He worked light duty until terminated for reasons unrelated to his injury (the Court does not elaborate and there is apparently no dispute that the termination was in fact unrelated) in August 2009. Mr. Cudihy applied for WC benefits and alleged a 6/25/2009 injury date. The Administrative Law Judge found that the claimant had sustained in injury on 9/2/08 and a new accident on 6/25/09 and was entitled to TTD and medical treatment. The new accident date of 6/25/09 was supposely based upon the 1978 decision of the Court of Appeals in Central State Hospital v. James and relates to the situation in which the employee is injured but "continues to work until he is forced to cease work because of his gradullay worsening condition which was at least partly attributable to his physical activity in continuing to work subsequent to his injury..." On Appeal to the Appellate Division of the SBWC, the AD found that Mr. Cudihy did not establish the first accident (9/2/2008) thus making the fictional new injury inapplicable. Remember, Cudihy failed to give notice of the injury within 30 days of 9/2/2008. Further, since 6/25/2009 was not a date of disability, the very terms of the "new accident" as expressed by Central State v. James was inapplicable. Mr. Cudihy only reported the original injury (9/2/2008) on that date. He did not lose time, he continued to work until terminated for other reasons. When he left work, he was admittedly capable of continuing to work. So why did the Superior Court reverse? After all, it seems like the SBWC applied the law correctly. The Superior Court looked to the claimant's continued employment and worsening condition, calling it a cumulative trauma condition that amounted to a gradual injury. The problem with this analysis is that even Mr. Cudihy admitted that he did not sustain any injury on 6/25/2009, he did not become disabled on 6/25/2009 and continued working until he was fired on 8/12/2009 and even after that admits he was capable of continuing to work. The Court of Appeals also noted that there was some evidence that Mr. Cudihy's condition on the date of the original hearing was the same as it was on 9/2/2008 so a finding of worsening was not demanded. Bottom line for Mr. Cudihy and his employer, all claims were denied. Practice Pointers: 1) For the injured worker - report your injury, treat with authorized doctors and work with your employer about accomodated duty 2) For the Employer - don't count on the fact that ACTUAL notice will be required to carry the day. Constructive notice "the employer should have known" will often suffice and is most often available (i.e. the supervisor knew the claimant was in pain, saw indications of pain behavior, claimant missed time for doctor appts, cl was not able to perform as well as had previously been the case) 3) For the Insurer - know the facts about the original injury and make sure that the employee's statements (most helpful if part of a recorded statement) comport with the medical evidence. Interview and be appropriately skeptical of anything told to you, even by the Employer and witnesses, to make sure that these statements are consistent with the record in front of you.


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Travelling Employees

When is a travelling Employee not a "travelling employee?" According to the Georgia Court of Appeals, when the employee has not yet reached his destination. In a decision handed down on 11/21/2012, the Court decided the companion cases of THE MEDICAL CENTER, INC. v. Hernandez et al. (Ga Ct Appeals A12A1292) and HERNANDEZ et al. v. ATLANTA DRYWALL, LLC. (A12A1315). Both cases arose out of the unfortunate death of Juan Alvarez-Hilario and the serious injuries to Celvin Hernandez. Mr. Hernandez and Mr. Alvarez-Hilario were employed by Atlanta Drywall on a church construction project near Columbus, Ga. In the course of their work on the project, Mr. Hernandez and Mr. Alvarez-Hilario would make the four hour drive from Savannah to Columbus in the early morning hours on Monday, would work 10 hour days, stay in a hotel room provided by the general contractor and then return home on Saturday to spend the weekend at home. They were paid only for the hours during which they were working on the job site, were not paid for the travel time to or from Columbus. On Monday morning 2/8/2010 when they were approximately 5 minutes from the job site, Mr. Hernandez and Mr. Alvarez-Hilario were involved in a motor vehicle accident when their truck overturned. Mr. Alvarez-Hilario died in the accident while Mr. Hernandez was hospitalized for weeks with serious injuries. Both claims were denied by the State Board of Worker's Compensation and that decision was appealed to and affirmed by the State Board's Appellate Division and the Superior Court on Appeal. The Court of Appeals accepted the Application for Discretionary Review to decide whether this case was properly viewed as one involving "travelling employees" or the "going to and from work rule." The distinction between the two is significant. It is axiomatic in Ga workers' compensation law that an injury, to be compensable must "arise out of" and occur "in the course of" the employee's job. "Arising out of" refers to what the employee is doing while "in the course of" looks to when and where the employee was doing it. The "Going to and from work" rule addresses the "in the course of" employment portion of the compensability test and provides that an employee's injuries occurring during that period of time when he is going to and from work (his commute time) is NOT compensable. Over the years, the Courts have carved out exceptions to this rule such as for travelling employees. In the case of travelling employees, the Courts have recognized that an employee, being called away from his home in service of his employer has a wider definition of what would constitute "in the course of" his employment. This has, for example rendered compensable injuries that occur in an employee's hotel room and while the employee is eating. Such activities if performed in a reasonable and prudent manner for the health and comfort of the employee would be considered as arising out of and occuring in the course of his employment. The employee in these circumstances is generally considered as being engaged in "continuous employment." At first blush, then, it might seem that Mr. Hernandez and Mr. Alvarez-Hilario would qualify as travelling employees. Why then did the State Board, the Superior Court and, in this decision, the Court of Appeals decide that the injuries to one and the death of the other were NOT compensable? The distinction lies in the facts as set forth above. These gentelmen would drive from Savannah to Columbus each Monday morning and go straight to work. At the end of their workday, they would retire to the Employer-provided hotel accomodations. By driving to the job site each Monday morning and beginning their workday there, what might have otherwise qualified as "continuous employment" was simply a longer commute and there was no way around the fact that they were "Going TO" work, had not commenced their workday and were not being paid until they arrived at the job site. The Court did take pains to note that "once they had arrived at the job site and begun their duties for the week, barring some deviation for a personal mission wholly foreigh to their employment, the continuious employment doctrine very well might have been applicable..." What factors then were important to consider? 1) These men were NOT being paid for their travel time to and from the job site - they were only "on the clock" when they were at the jobsite. 2) They travelled direct from home to the job site and not to the hotel. One might wonder whether simply driving to the hotel first and then proceeding to the jobsite would have invoked the Continuous employment doctrine. Previous cases have found compensable those injuries which occured between the hotel and the jobsite but all involved a previous overnight stay. In the circumstances of this case, however, when the pay did not begin until they arrived at the jobsite simply "touching base" at the hotel would not seem to be enough.


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New Case - Change of condition v. New Accident

The difficult task of discerning between what facts constitute a change of condition and those which show a new accident were once again the subject of a Georgia Court of Appeals decision issued yesterday 11/13/12.  The Court handed down its opinion in the case of Evergreen Packaging, Inc et al. v. Prather (Ga Ct App A12a1067).  Briefly, the facts are that Larry Prather was working as a warehouseman and forklift driver for Evergreen when he injured his back in 2002.  As a result of that injury, he was paid 5 weeks of income benefits, received medical treatment and returned to work.  In 2005-2006, Prather applied for and was granted a change in his job duties.  His new job as "plate maker"(he made plates for Evergreen's printing presses and cleaned them after the process was completed) required him to gather materials, cut those materials and to handle the plates which weighed between 15-20# for a set of 4 plates.   The process also required him to place the plates in numbered bins which required bending over all the way to the floor and reaching up over his head.  In addition, the new position also required lifting boxes weighing between 30-50#.  Prather admitted that the lifting required in new position was lighter than the lifting requirements in his position as a warehouseman. 

According to Prather, after his return to work from the initial injury, his back (which bothered him from day one) got progressivley worse.  Prather was unable to point to any specific incident where he actually felt that he hurt himself.  From his return to work after the 2002 unjury until 2010, he missed one week of work due to back problems.

During his last two years of employment, Evergreen purchased a new plate table for Prather to use.  This new table required him to bend over farther in performing his duties and this activity caused his back condition to worsen.  Over the last few months of his employment, he noticed new symptoms  (a numbing feeling down into his foot).  Prather south treatment on 2/3/10 with a chiropractor and on 3/1/10 stopped working at the recommendation of another chiropractor.  A new MRI was obtained on 3/15/10 which, when compared with the previous MRI in 2005 showed an increase in the extent of disc extrusion and an increase in stenosis.  An annular tear was also noted as a new finding on the 2010 report. 

With no specific injury noted and with work lifting requirements in the new employment being lighter than in his old job, it would seem that this case was tailor-made for a change of condition finding.  Readers of this blog will recall previous posts in which the case of Central State Hospital v. James,  147 Ga. App 308, 248 SE 2d 678 (1978) was discussed (probably at too much length).  The James court explained the possible permutations in a given factual scenario as the basis for the analyzing whether a change of condition or a new accident should be found.   Evergreen argued that the first scenario discussed in James was directly applicable and required the change of condtion finding since the condition deteriorated, there was no specific incident or new injury precipitating that decline and because the job duties were lighter.  They argued that, as a matter of law, these facts required a finding of a change of condition.

The Court in Prather, however, decided that the ALJ, the SBWC's Appellate Division and the Superior Court, had it right in deciding that the claimant aggravated his condition, a fictional new injury, as a consequence of his job duties. The Court pointed to the 1980 decision in Certain v. USF&G, 153 Ga App 571, 266, SE 2d 263(1980) which provided that "ordinarily the distinguishing feature which will characterize the disability as either a change of condition or new accident is the intervention of new circumstances."  Since in Mr. Prather's case the SBWC had found such new circumstances in the new plate table that Prather used which required him to bend over farther in performing his duties and that this activity caused his back condition to worsen.  With this finding, there was evidence to support the award of the SBWC (finding a new injury) and thus, the Superior Court and the Court of Appeals were duty-bound to affirm it.

What were pivotal pieces of evidence?   1) new findings on the MRI - in particular the annular tear 2) the Plate table which required more bending over and which made the condition worse.  Other items of concern, which Evergreen and its attorneys could do precious little to combat were: a) the change of condition statute of limitations had run on the old claim so if Mr. Prather were provided medical under the old claim, he would have no income during the convalescence and b) the claimant and the medical providers were pushing for the new accident.   Motivation of the employee is an important consideration when analyzing these claims.  Getting the employee on your side early on may help sway the medical providers as well.  This is critical, especially when there is a new carrier or new employer involved.




"Skedsvold & White
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Borrowed Servant and Joint Employment

Hot off of the presses from the Georgia Court of Appeals is the decision rendered 11/7/12 in the cases of Aimwell Inc et al. v. McLendon Enterprises, Inc. et al.and McLendon Enterprises, Inc. et al.v. Aimwell, Inc et al.  As the names of the cases might suggest, these were cross appeals made by the same parties to a compensable injury involving Mr. Orlando Gaffney. 

In order to understand the case, let's first set the players.  Orlando Gaffney was employed by Aimwell.  Aimwell  is a trucking company that leased both trucks and drivers to its customers.  McLendon was a road grading and utility contractor and Aimwell's largest customer.  Aimwell and McLendon both operated out of the same building and were owned, one by a brother and the other by his sister.  In its business dealings, McLendon required that Aimwell provide both liability coverage for the trucks and workers' compensation coverage for its drivers before the trucks could be used. 

Mr. Gaffney, in the course of his employ with Aimwell would be responsible for supervising the drivers who were loaned to its customers, including McLendon.  From time to time, Gaffney himself would be called upon to drive on of the trucks when no other drivers were available.  However, even while driving, Gaffney continued his supervisory responsiblity over the trucks and drivers loaned to its customers.  Aimwell would submit an invoice to its customers, including McLendon for the truck usage and driver's hourly time.  This invoice would be paid by the customer to Aimwell and Aimwell would compensate its drivers. As you might have surmised by now, the injury to Mr. Gaffney occurred when he was driving the truck on assignment to McLendon. 

Aimwell's carrier, Graphic Arts Mutual Insurance, accepted Mr. Gaffney's claim, paying income and medical and then sought a determination from the SBWC as to whether McLendon was liable in whole or in part for Gaffney's injuries.  At the trial level by the Administrative Law Judge, the ALJ determined that Gaffney was jointly employed by Aimwell and McLendon thus obligating each for equal portions of Gaffney's claim.  The Appellate Division of the SWBC disagreed finding Aimwell 100% responsible for Gaffney's injuries.  The Superior Court agreed with the SBWC and Aimwell appealed the 100% finding.  For its part McLendon appealed the finding from the SBWC that Gaffney was a borrowed servant. 

The concepts at issue here are 1) Borrowed Servant and 2) Joint Employment.  Understanding those legal doctrines will help to make sense of them and what the Court did with Mr. Gaffney's claim.  The BORROWED SERVANT is an employee who is loaned by his original employer to another for a particular employment and will be dealt with as a servant of the person to whom he is lent although he remains a servant of the person by whom he was lent.  For workers compensation purposes, the employee working as a borrrowed servant may recover for his injuries sustain from his work from either his general (original and loaning) employer or his special employer (the one to whom he was lent) or, in some instances, both. The borrowed servant is, then, statutorily limited to WC benefits from either employer.  If the borrowed employee is not found to be a joint employee, then the special employer is fully responsible for compensating the injured employee.  The concept of JOINT EMPLOYMENT requires that the employee be engaging in services for both his original employer and the special employer.   In the case of a joint employee, the Court may apportion liability pursuant to the Official Code of Georgia Annotated (O.C.G.A.) §34-9-224.  That code section provides, however, that "nothing in this code section shall prevent any reasonable arrangement between such employers for a different distribution as between themselves of the ultimate burden of compensation." 

Neither Aimwell nor McLendon disputed Gaffney's "joint employment" at the time of his injury, only the apportionment of the liability for those injuries.  The dispute boiled down to the "wage liablity" for Gaffney's services.  Aimwell contended that since McLendon used Gaffney's services as a driver for 11.5 hours on the date of his injury, that McLendon should share the responsiblity for the injury.  McLendon pointed out, however, that they did not pay Gaffney directly, and instead that they paid Aimwell for Gaffney's services and that Aimwell paid Gaffney's wages.  This is definitely, by the Court of Appeals' reasoning a significant distinction.  Aimwell would have paid Gaffney the same amount whether he acted as a driver, as a supervisor for Aimwell's other drivers and vehicles or both.  As mentioned, he was, at the time of his injury doing both so the "joint employment" label seems aptly applied.   As such O.C.G.A. §34-9-224 would apply and apportionment of liability might be applicable UNLESS the parties made other "reasonable arrangments" within the context of the statute.  In this regard, the Court of Appeals noted that McLendon required that Aimwell provide liability coverage and workers' compensation coverage for vehicles and drivers involved in the contracted work.  The bottom line:  the borrowed servant (Gaffney) was the joint employee of the original employer (Aimwell) and the special employer (McLendon).  The agreement between Aimwell and McLendon that Aimwell provide WC coverage for its employees represented the reasonable arrangement between the parties, that Aimwell would alone bear the responsibility for WC coverage for those drivers. 

With this finding, the Court had no reason to decide the issue that McLendon presented on its cross appeal objecting to the SBWC finding that Gaffney was McLendon's borrowed servant. 




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Medicare Issues in Workers Comp

Our post from 8/31/12 queried whether attorneys and litigants might be able to game the Center for Medicare Services, thereby undercutting the Medicare Secondary Payor Act (MSPA)  The question was prompted by the decision of the 6th Circuit Court of Appeals in Hadden v. United States.  The full discussion can be seen athttp://workerscompanswers.blogspot.com/2012/08/can-medicare-set-aside-system-be-gamed.html
In short, the plaintiff (Hadden) settled his personal injury claim for less based upon allegations of his own negligence and attempted to reimburse Medicare for less based on the same percentage of of the other party's negligence.   Medicare refused the proportionate offer based on the MSPA and demanded repayment of its lien.  The 6th Circuit refused Hadden's request and ordered reimbursement to Medicare as demanded.  Our post from 8/31/12 advised that Hadden had petitioned the US Supreme Court to hear his appeal by writ of certiorari.

On Monday October 1, 2012, the US Supreme Court refused to grant certiorari to Hadden and has, therefore, left the 6th Circuit Court of Appeals' decision intact. The Court noted that the 11th circuit found some value in the proportionate reimbursement  argument.  We will explore that decision and its points in common with Hadden to see if the US Supreme Court's thought process might be more easily understood.  Stay tuned...

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US Supreme Court Answers Question about Medicare. Recovery

Our post from 8/31/12 queried whether attorneys and litigants might be able to game the Center for Medicare Services, thereby undercutting the Medicare Secondary Payor Act (MSPA)  The question was prompted by the decision of the 6th Circuit Court of Appeals in Hadden v. United States.  The full discussion can be seen at http://workerscompanswers.blogspot.com/2012/08/can-medicare-set-aside-system-be-gamed.html
In short, the plaintiff (Hadden) settled his personal injury claim for less based upon allegations of his own negligence and attempted to reimburse Medicare for less based on the same percentage of of the other party's negligence.   Medicare refused the proportionate offer based on the MSPA and demanded repayment of its lien.  The 6th Circuit refused Hadden's request and ordered reimbursement to Medicare as demanded.  Our post from 8/31/12 advised that Hadden had petitioned the US Supreme Court to hear his appeal by writ of certiorari.

On Monday October 1, 2012, the US Supreme Court refused to grant certiorari to Hadden and has, therefore, left the 6th Circuit Court of Appeals' decision intact. The Court noted that the 11th circuit found some value in the proportionate reimbursement  argument.  We will explore that decision and its points in common with Hadden to see if the US Supreme Court's thought process might be more easily understood.  Stay tuned...

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When is a co-employee immune from suit in Tort?

The Official Code of Georgia Annotated Section 34-9-11 provides that the exclusive remedy for an employee for injuries occurring at work is the Worker's Compensation and the damages specified in this statutory-based system.   That section also extends the immunity of the employer to the co-employees of that same employer by providing: 

The rights and the remedies granted to an employee by this chapter [i.e., the Act] shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer....

Extending the immunity to the co-employee's makes sense insofar as the predictability of recovery and the exclusion of questions of negligence are concerned.  After all, if an employer needs to worry about negligence of co-emloyees, the focus of investigation will be lost and the injured worker harmed by delays in receiving treatment.  This statutory immunity applies as well even when the claim is not ever accepted as or ruled as compensable.  Furthermore, this immunity applies when all parties agree that the injuries do not arise out of or occur in the course of the injured worker's employment.  This situation occurs in the context of "no liability settlements." 

First a word about settlements.  Any settlement of a claim justiciable under the workers compensation act must be approved by the State Board.  This requirement prevents employers from taking advantage of unwitting employees who might not be fully apprised of their rights in waiving a workers compensation claim.  The State Board takes no position as to whether a claim should be settled and if so, for what amount.  The form that the settlement can take depends on the posture of the claim at the time of resolution.  Any claim in which income benefits are paid is an accepted compensable claim and must be resolved by a liability settlement which, when submitted, must be supported by medical evidence.  In theory the State Board could refuse to approve settlement for insufficient consideration (i.e. not enough $$) but under current practice generally looks to whether the Employer is paying the PPD rating along with additional consideration for the waiver.  Any claim in which nothing has been paid or in which only medical has been paid can be resolved on a no liability settlement.  The Board's consideration of these settlements focuses on the questions of who will pay outstanding medical expense and whether the attorney fees are correctly limited to the statutory maximum of 25% of the gross recovery. 

On September 10, 2012, in the case of Smith v. Ellis , the Georgia Supreme Court issued an interesting ruling dealing with a no liability settlement and its impact on a tort claim filed by the injured worker against a co-employee.   The Court stated the issue as follows: 

"The principal question in this appeal is whether an employee who files an injury claim against his employer under the Workers’ Compensation Act, OCGA §§ 34–9–1 to 34–9–421, and receives compensation in exchange for a “no liability” settlement with his employer that is approved by the State Board of Workers’ Compensation pursuant to OCGA § 34–9–15(b), may then turn around and sue the co-employee who caused the injury in a tort action." 

The Georgia Court of Appeals previously answered that question (in its 2002 decision in the case of Ridley v. Monroe)  by saying no, the co-employee could not be sued.   In the Smith v. Ellis case, however, the Georgia Court of Appeals was evenly divided over the question of whether that rule should be changed, especially in the context of the injuries sustained by Mr. Smith.  The Georgia Supreme Court declined to overrule the Ridley decision but decided that its provision of immunity did not apply to the injuries that Mr. Ellis had caused to Mr. Smith. 

The adage that bad facts make bad law might be applicable to this situation (from Mr. Ellis' perspective) but the real answer is that there are some actions that are so patently stupid that it is difficult to apply a sensible standard to protect that conduct.  Mr. Smith and Mr. Ellis were indeed co-employees.  The record reflects the following:

Ellis called Smith to arrange a meeting so that he could borrow one of Smith’s tools for his personal use. Ellis also wanted to shoot some new guns he had purchased, including an AR–15 rifle, in an undeveloped field in the Westcott Place subdivision. At 10:30 the next morning, the two men met at a house that Smith was finishing in Westcott Place. Ellis made one phone call regarding a problem with the house and then followed Smith through a couple more houses for which Smith was responsible before they went to lunch around 11:00 a.m. Smith and Ellis returned to the subdivision at 1:00 p.m., where Smith continued to work. Ellis had no work to do and left that part of the property to avoid being seen by one of his supervisors, because he was not supposed to be at Westcott Place. At about 2:30 p.m., Smith met Ellis in the undeveloped field, which was a quarter of a mile away from the houses where Smith had been working. Ellis began firing his new rifle while Smith organized his work tools next to his truck. The rifle jammed three times. Ellis successfully cleared the first two rounds, but he accidentally shot Smith in the right thigh when he tried to clear the third round. The bullet went through Smith’s right leg and into his left leg, causing serious injury.

The fact pattern as set forth by the Court called into question, not the status but the activity in declining to apply the exclusive remedy to Mr. Ellis' actions.  In short, the Court could not find any reasonable interpretation of the events that might bring Mr. Ellis  within the course and scope of his employment.  Smith had settled his WC claim with his employer on a no liability settlement and Ellis attempted to use that settlement under the worker's compensation act as absolution of his activities and his incompetency in handling a firearm.    Ellis pointed to prior decisions involving negligence of co-employees for example in motor vehicle accidents in company owned parking lots  in support of his position that negligent co-employees cannot be held liable for the injury which resulted.  After all, Ellis contends, and Smith admits, that the shooting was accidental (even if collossally stupid).   The Court viewed the question though as whether the Act protects an employee tort-feasor when the tort is committed outside the course of the tort-feasor’s employment.  
The Court noted, "Indeed, the Act expressly excludes from coverage “injury caused by the willful act of a third person directed against an employee for reasons personal to such employee,” OCGA § 34–9–1(4)—including where the intentional tort-feasor is a fellow employee acting for personal reasons rather than in the course of his employment, see Kight v. Liberty Mut. Ins. Co., 141 Ga.App. 409, 410–11, 233 S.E.2d 453 (1977)"

In refusing to grant summary judgment to Ellis (in other words, the case can go to the jury for a decision), the Court noted: 

Unlike Smith, who was injured while in the subdivision where he was assigned, had been doing his job, and was still engaged in organizing his work tools next to his truck, Ellis had come that day to a different subdivision in a different city to borrow a tool for personal use and to shoot his new guns. Ellis had worked little if at all that morning, and after lunch he did no work and actually hid his presence from a supervisor. Moreover, Ellis injured Smith during an activity their employer did not condone, much less direct

Bottom Line:  You cannot protect from stupidity.  As an employer, you can be more careful in hiring and you should be mindful of the activity of your employees.  The Employer  in this case might have been able to defend against the WC claim of Smith but would have to deal with the fact that Smith seemed to be doing what he was supposed to be doing where he was supposed to be doing it when he was shot by the activity of a co-employee who was decidedly not doing what he should. 


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Presumption of Compensability in unexplained Death - new case from Ga Court of Appeals

Presumption of Compensability in the Instance of Death


It is axiomatic in most settings of litigation that the party making the claim has the burden of proving all elements of his claim in order to establish the compensability of his injuries. So what do you do when the only witness to an event or to circumstances is dead? It should not surprise most readers, with at least some exposure to the various workers' compensation systems that most systems are retiscent to penalize the injured worker who cannot after all testify on his own behalf.

That principal was well established in Georgia by the time that the Court was called upon to decide the 1982 case of Zamora v. Coffee Regional Hospital (162 Ga App 82, 290 SE 2d 192 (1982). The presumption as originally phrased held that "when an employee is found dead in a place where he might reasonably be expected to be in the performance of his duties, it is presumed that the death arose out of his employment." The presumption once applied can only be overcome by showing what ACTUALLY happened, not what MIGHT have happened. In many respects, the lack of witnesses after the application of the presumption means that the employer is left without any meaningful defense. The Zamora Court noted that "in light of modern forensic medicine...it is rarely the case that the decedents immediate cause of death is unexplained." If the medical causation was the only question that needed to be answered then there would be no viable presumption left but unexplained circumstances could still prevent an otherwise deserving and surviving dependent from making the case that the death of the employee was related to the job dutiesduties Zamora court, therefore, adopted an additional gloss on the unexplained death presumption holding that "the presumption is viable only where, under the evidence, the precipitating rather than the immediate causative factor in the death is unexplained." If the discussion thus far leaves one confused, rest assured that the confusion places one in good company. The answer though lies in precisely WHAT is unexplained. For example, when you find a ball that has rolled into a ditch, the proximate cause of the ball rolling into the ditch is found in the simple fact that the ball is round. If you want to discover WHY the ball rolled into the ditch, to discover the precipitating cause, you look for the incident that put the ball into motion in the first place.

Evidence derived from a death certificate, an autopsy or even from the employee's medical history can generally explain the medical facts - the cause of death. What the Zamora court wanted to know is what triggered the medical cause that led to the employee's death. For instance, "where the precipitating causative factor of a stroke is known and explained as hypertension, the claimant is not entitled to 'rely upon the presumption that the stroke arose out of the deceased's employment but must submit probative evidence on the issue of the causal connection between the stroke and the employment."

But what happens when the employee is not "found dead" but instead dies later at the hospital? That is the question that the Georgia Court of Appeals answered in its September 6, 2012 decision in the case of Wilkinson County Board of Education et al v. Johnson. While this question had actually been addressed as far back as the 1983, the Courts have struggled with the correct application of the original presumption as well as the extensions of that standard to a death that occurred later at the hospital.

Mr. Johnson was the Principal and Athletic Director of Wilkinson County High School. On December 16, 2008, Mr. Johnson travelled to the VA Hospital in Dublin to pick up some donated computers. Upon arriving, Mr. Johnson walked between 300 - 400 yards to the warehouse where the computers were stored. Having determined that there were more computers than he could transport at the time, he walked back to his vehicle and left. Before returning to the High School, Mr. Johnson and the volunteer who had accompanied him to the VA Hospital, went for lunch and ate while they drove. About 10 minutes after finishing lunch, the volunteer noticed that Johnson was driving erratically, fidgeting and sweating profusely. Johnson loosened his tie and unbuttoned his shirt as if to get air. Wisely, Johnson allowed the volunteer to take over the driving responsibility and the two made it safely back to the school. Johnson went to the restroom and then to his office. His secretary observed that Johnson was sweating profusely, helped him remove his shirt and called the school nurse. The nurse found Johnson's blood pressure to be elevated and confirmed that Johnson has not been taking his blood pressure medication. At the hospital, Johnson's blood pressure was found to be 196/60, a significantly elevated reading. A CT scan was obtained and showed revealed that Johnson had experienced an acute aortic dissection and he underwent emergency surgery to repair the artery. Complications from that surgery led to kidney damage and, unfortunately to Johnson's death 5 days later on December 21, 2008. The autopsy placed the cause of death as complications of the aortic dissection, specifically an ischemic bowel. From these facts, the medical causation, the immediate or proximate cause of Mr. Johnson's death was clearly known.

The State Board of Workers' Compensation found that since Mr. Johnson died at the hospital and was not "found dead", the circumstances of his death were not unexplained and that, therefore, the presumption of compensabiltity was not applicable and denied the claim. The Appellate Division of the State Board of Workers' Compensation agreed and Mrs. Johnson appealed to the Superior Court. The Superior Court found the State Board had erred in ruling that because Mr. Johnson was not found dead the presumption was inapplicable. The Superior Court found that the incident that resulted in Johnson's death did, in fact, occur at a time and place when he was performing his job duties and that as a result Mrs. Johnson was entitled to the presumption. Mr. Johnson's blood pressure issues obviously were preexisting and so the Superior Court remanded the case to the State Board for application of the presumption in Mrs. Johnson's favor and whether the preexisting condition had been aggravated by his job duties. It would seem that with the application the presumption, there would be little reason to determine the question of aggravation as this factual determination would not be sufficient to overcome the presumption but the ruling of the Superior Court itself contained compound errors as well as a misapprehension of the correct standard. First and foremost, the Superior Court violated the any evidence standard when it substituted its finding of fact that the incident which led to the death occurred in the course of Mr. Johnson's job duties. Second, the Superior Court was wrong when it made a specific finding that the precipitating cause of death was unexplained. This was the role of the trier of fact, which the Superior Court as an appellate court was not. The role of the Superior Court was solely to determine if 1)

The next stop on the litigation tour brought the parties to the Georgia Court of Appeals. Wilkinson County contended that the Superior Court improperly found the presumption compensable and in remanding the case to the State Board. The. Court of Appeals agreed with that contention but surprised both sides by finding that the State Board had improperly denied a presumption in the first place by limiting its inquiry to the fact that Mr. Johnson had not been "found dead." In playground terminology, the Court was imposing a "do-over" and sent the case back to the State Board to apply the proper test as to whether a presumption is applicable to Mr. Johnson's death. In short, the Court has asked the State Board, as the trier of fact, to make a determination as to whether the PRECIPITATING cause is unexplained and, if so, to apply the presumption. Specifically, the immediate or proximate cause of Mr. Johnson's death was the complications from the surgery to repair the acute aortic dissection. The Court is asking the parties to produce evidence, including medical evidence as to what led to the acute aortic dissection. If the condition is explained by the apparantly uncontrolled diabetes, the precipitating cause is not unexplained and no presumption applies. If the presumption is not applicable, if the precipitating cause of the stroke is explained, Mrs. Johnson might be able to prevail if she can show for example that the job duties aggravated Mr. Johnson's pre-existing high blood pressure. For now, there is no final answer.


The Court of Appeals confronted two different Courts that each applied the wrong standard and not surprisingly came to different conclusions. What is not clear is whether Mrs. Johnson relied exclusively on the presumption and thus presented no evidence, no medical evidence, to support a factual finding in her favor without the presumption. Stay tuned...


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New Injury or Aggravation

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.


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In the Course of Employment analyzed

In my post of 7/16/2012, as part if the discussion on whether an auto accident occurring during the drive to a work comp medical appointment might be compensable, we touched on the concepts of "occurring in the course of employment" and "arising out of employment." On January 11, 2012, the Georgia Court of Appeals explained these terms in some detail in the case of Stokes v. Comets County Board of Education. Ms. Stokes claim concerned the arising out of part of her burden of proof. Ms. Stokes was the head custodian at an elementary school in Coweta County. As part of her job duties, she was required to unlock and open the gates to the school parking lot every morning. On May 3, 2010, Ms. Stokes drove her personal vehicle up to the front gate at 5:45 am in a heavy rain ready to open the gate. She parked her car on a steep incline, exited the car and walked up the hill towards the gate. Upon noticing her car rolling back down the hill, Ms. Stokes in her words "reacted instinctively" and ran to stop the car. When she did so, she tripped and fell with the result being that the car rolled over her foot. A few days later, Ms. Stokes' foot was amputated. Coweta County questioned the compensability of the injury, reasoning that Her action of running after her personal vehicle did not "arise out of" her employment and was instead personal. The State Board of Workers' Compensation decided that the act was personal. After the Superior Court affirmed the State Board (remember the any evidence rule) the Court of Appeals agreed to take a look. While bound by the any evidence rule as well, the Court of Appeals reversed, deciding that the Board used an incorrect legal theory and as a result did not consider all of the evidence in light of the correct legal theory. I know that sounds confusing, and it should. Questions of compensability contain not only issues of fact but also issues of law. The Court felt that the State Board considered the facts correctly but applied the wrong standard. Whereas the State Board considered Ms. Stokes as having deviated from her employment when she chased after her personal vehicle (an activity not specifically within they're job duties),the Court of Appeals considered those same facts as not constituting a deviation. The Court distinguished this situation from a voluntary departure from work duties to do as she pleased and pointed out that Ms. Stokes "responded instinctively and instantaneously to an unexpected and dangerous situation that arose directly out of the performance of her job duties." While Ms. Stokes could certainly have let her car roll away, the Court felt that to penalize Ms. Stokes for an instantaneous reaction would be unfair and in contrary to a similar decision issued in 1933. Bottom line: Ms. Stokes was where she was supposed to be (in the course of her employment) and doing what she was supposed to do in opening that gate (arising out of her employment) and a momentary sudden emergency did not act to change that.

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Is an auto accident during a work comp medical appt a compensable injury?

The basic definition of a compensable injury requires that the Employee's injury arise out of an occur in the course of his employment. The question of whether the injury occurs in the course of refers to WHERE the employee was WHEN the injury occurred. In other words, was the employee where he was supposed to be in the performance of his job. The "arising out of" portion refers to WHAT the employee was doing when the injury happened. In short, was the employee doing something in furtherance of his job and his employer's interests? It would seem that based on those criteria that an automobile accident that occurs when the employee is going to a work comp medical appt would not be a compensable event. After all, he was not where he was supposed to be to perform his job and was not doing anything to further his Employer's interests when the accident happened. In 1994 the GA Court of Appeals decided in Johnson Controls v. McNeil, that just an auto accident would not be compensable since 1) attendance at the medical appointment was not mandatory; 2) the treatment was not a prerequisite to returning to work; 3) the employer did not set up either the appt or transportation; and 4) the employee was free to use his time for his own affairs. This decision ran counter to a 1985 decision in which a accident that occurred en route to an employer mandated appt WAS COMPENSABLE. Recently, the Ga Court of Appeals offered additional guidance on this question dealing with an increasingly common situation of Employer Provided transportation. On March 29, 2012, the Court issued its decision in the case of Flores v. Dependable Tire. One of the many issues in that case related to additional and different injuries sustained by Mr. Flores that occurred when Mr. Flores was involved in an auto accident while leaving a medical appt related to his injury but in a vehicle owned by a transportation vendor which was paid by the employer to transport Flores to that Mexico appt. Mr. Flores reasoned that the 1994 Johnson Controls decision listed as one of the factors in that Courts denial of compensability for McNeil's injury. The Flores court, however, decided that the medical transportation was not the dispositive issue and denied the compensability of the auto accident as 1) the transportation was requested by Flores' attorney 2) Flores was not going to or from work when the accident occurred; 3) the appointment was not required by the employer; and 4) the employer had no control over Flores' medical appointments.

This decision clarifies the Court's view of such accidents but may leave probably more questions unanswered that it resolves. Here are a few points to ponder 1) If the employer is taking the employee to medical treatment immediately after the accident because the employee had no transportation available; 2) would an Independent Medical Evaluation requested by the Employer be deemed a mandatory appointment in light of the fact that the employer cannot suspend benefits for non-compliance of the medical appointment without leave of the State Board? 3) what about the IME appt scheduled at the request of the employee? 4) if the employer cannot suspend benefits without a release to full unrestricted employment based on an evaluation that occurred within the last 60 days, does the employer scheduling an appt in order to secure such a current release render an auto accident during that appointment compensable? 5) if the MVA is compensable, would the Employer's Subrogation rights attach to a new accident date or to the accident for which the treatment was originally intended?
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