Generally, a “change in condition” occurs when the injured worker demonstrates a change in the wage-earning capacity, physical condition, or employee status after original injury (established by award or otherwise).  O.C.G.A. § 34-9-104 (a); Atlanta Hilton & Towers v. Gaither, 210 Ga. App. 343, 436 S.E.2d 71 (1993). See also Aldrich v. City of Lumber City, 273 Ga. 461, 542 S.E.2d 102 (2001). See ABB Risk Management Service/Georgia Kaolin v. Lord, 254 Ga. App. 88, 561 S.E.2d 225 (2002).  An injured worker must be careful in these situations as a few statutes of limitations may be triggered for restarting income benefits, or even formally accepting the claim.  See, O.C.G.A. §34-9-104 and 82.

In some cases, an injured employee who sustains a job-related injury may continue to work until her condition forces her to cease work because of gradual worsening of her physical condition.  The Georgia law will generally consider the date she stopped working as a “fictional new date of accident.”  Central State Hospital v. James, 147 Ga. App. 308 (1978).  These fictional new date of accident cases do not involve a new “traumatic” injury.  This scenario is analogous to the “straw that broke the camel’s back” story.

If you have been injured on the job and have recently stopped working, you may be entitled to workers’ compensation benefits.  For a free consultation, please contact the Ramos Law Firm.

In this case, the employee worked for a local courthouse.  It was her job to keep the courthouse clean.  She cleaned the floors, the restrooms, and removed the trash.  One morning as she spoke to her supervisor, the employee realized that some medication that she had put in her pocket had fallen out.  Her supervisor pointed it out on the floor, so the employee walked over to it and picked it up off the ground.  As the employee bent down to pick it up, she dislocated her knee and fell to the floor.  Not only was the employee obese, but she had already undergone two surgeries to repair her knee.

It was found that the pressure of the employee’s weight when she bent over caused her knee injury.  When the employee applied for workers’ compensation benefits, her employer denied the benefits based on the fact that it was her weight condition that caused her knee injury.

When the claim arrived at court, the Court announced that an employee’s accidental injury must arise both “out of…the course of the employment” and “in the course of the employment”.  In other words, the accident must be:

1. related to a risk of the employment; and
2. must be reasonable to that particular job.

In our claim, the employee was bending down to pick her medication off the floor.  She was on duty when she did this act, and it was her job responsibility to keep the courthouse floors clean.  Her actions arose out of and in the course of her employment.

What about the employee’s obesity? The Court stated that the employee’s weight condition does not affect the result.  An employee need not be in perfect health to receive workers’ compensation benefits.  The employer takes his employee as it finds him and assumes the risk of a health condition.  Compensation is awarded for an injury which is a hazard of the employment.  The employee cannot be denied benefits just because of her predisposition to dislocate her knee.

What about the fact that the employee was picking up her own medication? It does not matter that the employee was picking up her own medication off the ground because it was part of the employee’s job to keep the floors clean.  She was required to pick up the medication on the ground whether it was hers or not.  Courts have also stated that acts such as quenching thirst and eating are part of employment.  Taking required medication is a personal necessity that will usually not disrupt regular employment.

The Court held that the employee was eligible to receive workers’ compensation benefits because she injured her knee as she performed a task related to her job while she was on duty.

The claimant continued to work until 2005 when knee replacement surgery was recommended by a new doctor.  By this time, the Lawrence County Board of Education had a new insurer.  The new insurer denied liability for the knee replacement surgery.  Dewberry then filed a workers’ compensation claim.

The new insurer argued that Newberry had experienced a change of condition under O.C.G.A. § 34-9-104, asserting that the first insurer should be responsible for the knee replacement surgery.  This assertion was based on the fact that the claimant received medical care for his injury back in 2000 and continuing.

The Administrative Law Judge found that because the claimant did not ever receive any income benefits, that the 2005 injury was a fictional new accident and that the new insurer should pay.  The decision was affirmed by the Appellate Division, Superior Court and Court of Appeals.  The reasoning was that although the claimant received medical benefits and missed six (6) weeks from work, he never received a workers’ compensation award or voluntary payments of income benefits for his injury.  Therefore, he could not have a change of condition under O.C.G.A. § 34-9-104.

I appreciate opinions such as the one in Dewberry, because sometimes even the simplest sounding statutes need judicial interpretation to insure a correct result.  Whether the result is good, bad or indifferent, a clarification of the law helps the attorneys in their practice as it takes out some of the guesswork.

As for grandchildren, O.C.G.A. § 34-9-13(d) states that in all other cases, questions of dependency shall be determined in accordance with the facts at the time of the accident.  Also, no compensation shall be allowed unless the dependency existed for a period of three months or more prior to the accident.

Facts: An employee gets injured while working on September 11, 1998.  He received workers’ compensation benefits for his injury.  On February 14, 2000, the employee’s grandson moved into his home to live.  On August 17, 2006, the employee’s injury was deemed as catastrophic.  On October 2, 2006, the employee dies due to complications related to his work injury.  Is the grandson eligible considered a dependent and entitled death benefits?

If we apply the workers’ compensation rules to our fact pattern, the grandson that moved in with the employee on February 14, 2000 is NOT eligible for death benefits.  While the grandson would be considered a dependent if he moved in and received financial support from his grandfather/employee, he was not a dependent at the time of the accident on September 11, 1998.  Dependency is determined at the time of the accident which in this case was 2 years before the grandson moved in with his grandfather.

In the first case, a worker was required to forward her work calls to her cell phone while she was out of the office. She was involved in an automobile accident while she was taking a break to buy a soda. Because she was required to have her calls forwarded, she reasoned that she could apply the “continuous employment doctrine.” The Appellate Division found that despite the forwarding of the calls, the trip was more than a mere “slight deviation” from employment and therefore the claimant was not injured in the course and scope of her employment.

In the second case, the employee was injured when she returned to a break room to retrieve cigarettes she had left behind. The Appellate Division found this to be a compensable injury because the employee was only making a slight deviation from her employment duties. They wrote that for an incident to constitute a break in employment, it must be of a pronounced character. This trip, they reasoned was merely a brief interval.

It seems that freedom of action was an important factor in both cases. In the first, the employee was free to leave the employer’s premises to get a soda. In the second, the employee was required to stay on the premises for her break.

Georgia law takes a split view on whether entitlement to compensation transcends an employee’s death.  If death was caused by something other then the workers’ compensation injury, the employer’s liability terminates and it may stop paying all of the unpaid workers’ compensation payments.  O.C.G.A. 34-9-265(a).  If death is caused by the workers’ compensation injury the employer is required to pay for the employee’s burial and to pay the employee’s dependent(s) compensation equal to what the employee was entitled to under the code. If there are no dependents the employer is only responsible for burial costs.  O.C.G.A. 3409-265(b)1-2.

Presumably, 200.1(i) only applies to injuries occurring after its enactment. For injuries occurring prior to 2005, the only choice the Employer/Insurer had was to seek a change of condition under O.C.G.A. 34-9-104. This undertaking can prove challenging as there is no case law which states definitively that catastrophic designation is subject to a change of condition under 34-9-104.

To date, there has been no published case law discussing 200.1(i). However, it seems ripe for scrutiny by the Court of Appeals. What will most likely provide fodder for dispute is the fact that the language of 200.1(i) does not place any specific statute of limitations on filing for a new determination on catastrophic designation. The defense bar will certainly try to assert that operating under 200.1(i) is analogous to seeking a change of condition, and should therefore be subject to the two year time limit from the date the last weekly income benefits were paid. The claimants’ bar will certainly argue that since the legislature created an entirely different statute to control determinations of catastrophic designation, then the silence on a statute of limitations must have been intentional.

“. . . where the disability to work resulting from the injury is partial in character to temporary in quality, the employer shall pay or cause to be paid to the employee a weekly benefit equal to 2/3 of the difference between the average weekly wage before the injury and the average weekly wage the employee is able to earn thereafter but not more than $334.00 per week for a period not exceeding 350 weeks from the date of the injury.”

The Georgia Court of Appeals has examined what is meant by “the average weekly wage the employee is able to earn” as distinct from what the employee does earn. In Shaw Industries, Inc. v. Shaw, the Court of Appeals determined that the claimant was not entitled to the TPD (temporary partial disability) she was seeking for the difference between what she earned prior to her injury and what she was earning after her injury. The reason behind the court’s reduction in the claimant’s TPD benefits was that by the employee’s own doing, she missed some additional time from work. Shaw Industries, Inc. v. Shaw, 262 Ga. App. 586, 586 S.E. 2d 80 (2003).

There is also some argument that the Maloney burden would apply to someone seeking temporary partial disability benefits just as someone who is seeking total temporary disability benefits. See Gilbert/Robertson, Inc. v. Myers, 214 Ga. App. 510, 448 S.E. 2d 246 (1994). As such, a claimant would have the burden of showing that she performed a diligent search for suitable employment at the rate she was previously paid in order to merit TPD benefits.

So, clearly, the establishment of a TPD rate once an injured worker returns to some form of gainful employment is not necessarily a matter of simple arithmetic.

Generally, under Georgia law, an employer is responsible for paying for an employee’s medical treatment when the employee’s injury occurred during the course of his employment.  O.C.G.A. 34-9-1.  The willful misconduct provision found in Title 34, Chapter 9, Section 34 of the Official Code of Georgia Annotated, cuts off this broad based responsibility if the employer can show by the preponderance of the evidence, (1) that the employee was intoxicated within eight hours of the accident, and (2) the intoxication proximately caused the accident. Id.

In layman’s terms this means that the law allows an employer to escape paying for medical treatment and other benefits if the employer can show the injured employee was drinking alcohol or taking some type of altering drug within eight hours of the injury.  The employer does not have to prove drunkenness beyond a reasonable doubt. All it has to do is show the administrative law judge (a legal official who presides over workers’ compensation hearings) that the injured employee was more likely than not intoxicated and the intoxication was the primary cause of the accident.

The case arises out of a situation in which a surviving spouse had been paid benefits for approximately 13 years when the Georgia Insurers and Solvency Pool began handling the claim.  The Pool suspended her benefits based on a 1989 amendment to O.C.G.A. § 34-9-13(e).  She then filed a claim asserting, among other things, that the 1989 amendment was unconstitutional.  The matter was eventually heard before the Supreme Court.

At issue was the legislative procedure in enacting the 1989 amendment.  Prior to 1989, O.C.G.A. § 34-9-13(e) provided that “the dependency of a partial dependent shall terminate at age 65 or after payment of 400 weeks of benefits, whichever is greater.”  This was in regard to the receipt of death benefits in workers’ compensation matters.  The 1989 amendment provided “the dependency of his spouse and the partial dependents shall terminate at age 65 or after payment of 400 weeks of benefits, whichever occurs first.”

The 1989 Act which provided the amendment to O.C.G.A. § 34-9-13(e) carried a title which indicated that all of the changes enacted were basically non-substantive “housekeeping” alterations to the language of the statutes.  It did not indicate that any substantive changes were made.  Clearly, the changes that were made for the 1989 amendment were substantive.  The changes would in some cases greatly limit the amount of benefits available to the surviving spouse or dependents.

On April 21, 2008, the Supreme Court of Georgia ruled that the amendment and O.C.G.A. § 34-9-13(e) was not a “housekeeping” matter and rather was substantive.  The title of the 1989 Act did not indicate substantive changes were being made.  Therefore, the fact that substantive changes were made to § 34-9-13(e) was unconstitutional and the Supreme Court held that the amendment was void.

As one can see, this decision has very limited application.  However, it does put workers’ compensation attorneys on notice that great care should be exercised in examining amendments of workers’ compensation provisions to determine if there is a possibility that they may be unconstitutional based on a technicality as was found in the Chin case.