In this case, the claimant was an employee at Wal-Mart who was tasked with stocking shelves in a store located in Valdosta, Georgia.  In order to perform this job, she was using a ladder.  The claimant, who had pre-existing back problems, missed a step on the ladder and experienced lower back pain.  This injury allegedly occurred between 11:00 and 11:30 in the morning.  However, the Employer presented evidence that the claimant had not signed in until noon that day.   Moreover, the Employer presented other contradictory evidence to the claimant’s case.  The presiding administrative law judge denied the claimant’s claim for benefits, as well as her claim for attorney’s fees.

Initially, Employer/Insurer voluntarily commenced benefits, but later controverted the claim.  The claimant contested the controvert on the grounds that the Employer/Insurer failed to pay her all compensation due at the time of filing, in violation of O.C.G.A. § 34-9-221.

The claimant successfully appealed the ruling and the Appellate Division vacated the decision and remanded the matter for additional proceedings on the procedural issues surrounding the controvert.  The Employer/Insurer filed an appeal to the Superior Court, who reversed and remanded the case back to the Appellate Division to review only the issues raised before the trial administrative law judge.  As a result, the claimant requested assistance from the Court of Appeals to review the Superior Court’s order and sought a reinstatement of the Appellate Division’s decision.  The claimant argued that the Superior Court did not have jurisdiction and prematurely decided the matter on the merits.

The Court of Appeals agreed with the claimant on the procedural issue as the State Board’s decision was not a “final award” as mandated by law.  The Court held that the decision of the Appellate Division remanding the case to the trial division was “pending.”  Hence, the Superior Court should have declined to review the Employer/Insurer’s appeal as “such an interlocutory appeal is unauthorized under the Workers’ Compensation Act.”

For a copy of this case or for more information, please feel free to contact the Ramos Law Firm.

Mr. Tommy J. Wilson worked as a truck driver for the Kroger Company when he injured his back in 1994.  He underwent spinal surgery and remained out of work for nearly two years.  He was able to return to wok in a light duty capacity for the next 14 months.  Unfortunately, Mr. Wilson required another surgery in 1998 but was able to return to work in a sedentary “dispatcher” position.  During this time, Mr. Wilson was paid temporary total and partial disability benefits accordingly.

In September 2001, Mr. Wilson reached the statutory caps for indemnity benefits.  While he was able to continue to work until May 2004, he apparently did so without any workers’ compensation income supplements.

In August 2003, Mr. Wilson filed a WC-14 requesting an evidentiary hearing on the issues of temporary total or partial disability from September 2001 forward.  The hearing did not take place as he later withdrew his request.

In April 2006, Mr. Wilson filed an Employee’s Request for Catastrophic Designation with the Board.  However, the administrative law judge (ALJ) issued an order finding that Mr. Wilson’s claim was time-barred under the change of condition limitations found in O.C.G.A. § 34-9-104.  Upon appeal the Appellate Division reversed the ALJ’s decision and the Superior Court of Clayton County affirmed appellate decision.

The Court of Appeals granted discretionary review and first examined what limitation period applies to catastrophic designation cases.  The Court determined that requests for catastrophic designation constitutes a change in status or condition contemplated in O.C.G.A. § 34-9-104. Consequently, the two year statute of limitations applies from the last date of income benefits.

As that statute of limitations applies, the next question the Court addressed was whether Mr. Wilson’s filing was sufficient.  The Court found it was not.  The Court noted that the 2003 filing did not include a request for catastrophic designation.  Moreover, Mr. Wilson was working at the time and the Employer could not have adequate notice that the 2003 request was for life-time benefits.  Furthermore, the State Board Rules require that the employee file an official “Employee’s Request for Catastrophic Designation.” Mr. Wilson did not file this request in 2006.

Therefore, the claim for catastrophic designation was invalid as a matter of law.

These issues raise many questions as to the form, process and due process rights of the parties involved in a workers’ compensation claim.  For information regarding this case or about your workers’ compensation issues, please contact Bryan Ramos.

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.

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.

In a recent claim before the Appellate Division, an employer contended that an employee’s injury which occurred while the employee was on a break was not compensable.  The employee who was allegedly attempting to repair a paper towel dispenser in the restroom argued that the injury occurred during the course of and arose out of her employment despite the fact fixing the paper towel dispenser was not among the employee’s regular job duties.  The Appellate Division agreed with the employee and confirmed the ALJ’s ruling which concluded the injury occurred during the course of and arose out of the employment.

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.