More COVID19 court delays coming, and the GA Board moves forward with virtual hearings

Yesterday, the Georgia Supreme Court issued its Second Order Extending Declaration of Statewide Judicial Emergency. This extends its previous order to remain in effect through June 12, 2020.  This Order will keep all courts closed through that date.  Click here for a PDF copy of the Supreme Court's Order.  As before, courts will remain functional to conduct essential business, but trials and hearings will be postponed.  

The Supreme Court has attached an appendix to the Order that explains how the extension will be applied to filing deadlines and statutes of limitations.  If you have any cases that bring those issues into play, please contact me so we can discuss this further.

The State Board of Workers' Compensation has not yet followed the Supreme Court's lead.  When I contacted the Executive Director's Office to ask, I was told that they were waiting to see what the Chief Justice was going to do.  I expect them to issue a similar order later today extending all deadlines to echo the Supreme Court.

The Board has, however, moved forward with its planning the possibility of virtual hearings going forward.  Late Friday, the Board issued a model pre-hearing order that addresses the various procedural challenges that virtual hearings will encounter. Click here to see a PDF of the Board's Model Consent Order.  I have discussed the proposed hearing procedures with colleagues, and I would only advise virtual hearings if there is some advantage to be gained by doing so.  It occurs to me that cross-examining a recalcitrant or equivocal witness would prove very difficult.

If you have any questions or concerns about how the courts are moving forward or how these changes will impact a particular case, please contact me at your convenience.

Virtual Hearings Coming for Georgia Workers' Compensation Cases

As many of you know, Governor Kemp has decided to ease open businesses in Georgia.  In the meantime, the Georgia Supreme Court's Emergency Order on the COVID-19 stay/extension is in place at least until May 13, 2020 (click here to see a PDF of the order).  The Georgia State Board of Workers' Compensation has essentially adopted this order, and all workers' compensation hearings have also been postponed until May 13, 2020 (click here to see a PDF of the Board's order).  Board mediations are being held via telephone.  The Board remains open and continues to handle medical issues and other day-to-day rulings on motions.

I received an email today from Jerome Stenger, the ALJ who handles cases in Brunswick, Waycross, Thomson and Augusta.  His email indicated that the Georgia State Board of Workers' Compensation will soon roll out procedures for conducting virtual hearings. This will be entirely optional.  If all parties agree, court proceedings will be handled with Zoom Video Conferencing, and submission of evidence will be cloud-based using a Microsoft OneDrive application. The indications are that this will be an option going forward and not just a stop-gap measure during the COVID-19 crisis.

There is no substitution for in-person examinations, especially in cases where the credibility of witnesses is at issue.  Nonetheless, this change is an exciting one and will, in many cases, greatly decrease the costs associated with taking Georgia workers' compensation cases to hearing, especially when the hearing venue is far removed from the parties or the attorneys.  Watch your email for an announcement from the Board in the coming weeks about how this process will unfold.

If you have any questions or concerns, or if I can be of assistance to you for any Georgia workers' compensation issues, please do not hesitate to call or email.  

COVID-19 and Georgia Workers' Compensation Claims

I have fielded a number of calls and emails about how Georgia Workers' Compensation law will address workers who claim that they contracted the coronavirus/COVID-19 in the workplace.  Generally speaking, such claims will usually NOT be deemed compensable.  The reason is our very strict occupational disease statute in Georgia, O.C.G.A. § 34-9-280(2) which defines "occupational disease" very narrowly.  Here's the text of the statute:

 "Occupational disease" means those diseases which arise out of and in the course of the particular trade, occupation, process, or employment in which the employee is exposed to such disease, provided the employee or the employee's dependents first prove to the satisfaction of the State Board of Workers' Compensation all of the following:

(A) A direct causal connection between the conditions under which the work is performed and the disease;

(B) That the disease followed as a natural incident of exposure by reason of the employment;

(C) That the disease is not of a character to which the employee may have had substantial exposure outside of the employment;

(D) That the disease is not an ordinary disease of life to which the general public is exposed;

(E) That the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence.

For the purposes of this paragraph, partial loss of hearing due to noise shall not be considered an occupational disease. Psychiatric and psychological problems and heart and vascular diseases shall not be considered occupational diseases, except where they arise from a separate occupational disease.  

Note that the Employee bears the burden of proving ALL FIVE of these requirements.  Requirement "A" requires the employee to prove a direct causal relationship between the employment and the disease, and requirement "D" requires the employee to show that the disease isn't the type of disease the general public is exposed to.  In my view, those two requirements will make proving a work-related COVID-19 claim almost impossible.  

Further, requirement "C" requires the worker to prove that the disease isn't something you'd usually see outside of the workplace.  This is why we see coal workers having compensable black lung claims or textile workers having compensable byssinosis claims.  You just don't see those diseases outside of their respective unique occupational settings.  

So if you are confronted with a Georgia workers' compensation claim for COVID-19, carefully scrutinize the case to see if all five of these requirements are met.  It is difficult for me to envision any scenario where the answer would be "yes."  

If you have such a case and would like to discuss it, please contact me at your convenience. 

Georgia Supreme Court Weighs in on Concurrent Similar Employment

On May 23, 2016, the Georgia Supreme Court issued a decision in the case Fulton County Board of Education v. Thomas, ___ Ga. ______ (May 23, 2016, Case No. S15G1205).  The Court affirmed the decision of the Court of Appeals (Thomas v. Fulton County Board of Education, 331 Ga. App. 828 (2015).

The facts were simple.  Thomas was injured during her job driving buses for the Fulton County Schools.  The 13-week period prior to her injury included the part of the summer, during which she did not work for the county. During the summer, Thomas worked for another company called Quality Drive Away, delivering newly-manufactured school buses.  Although she did not work for the county during the summer, she did received pay on a 12-month basis.

Thomas believed that her 13-week average weekly wage calculations should include her pay from both the county and Quality Drive Away on grounds that the two job should be considered "concurrent similar employment." The county disagreed, noting that while the jobs were similar, they were not concurrent.  The county argued that the jobs were never held at the same time and were, therefore, not concurrent.

The ALJ agreed with Thomas' reasoning, and based the average weekly wage on both jobs. The Board's Appellate Division reversed, agreeing with the employer that the jobs were not concurrent. The Superior Court affirmed, but the Georgia Court of Appeals disagreed, and reversed yet again.  The county appealed to the Georgia Supreme Court which granted certiorari and affirmed.

The Supreme Court reasoned that the plain language of the average weekly wage calculation statute controlled:

(1) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks

O.C.G.A. Sec. 34-9-260(1) (emphasis added).  Because the statute expressly includes the phrase "whether for the same or another employer," the Court ruled that the wages for both employers should be used in the average weekly wage calculations.

This decision includes a helpful and succinct overview of the appellate decisions in this field.  If you would like a copy of the decision, please contact us.  

State Board Makes Minor Changes to Board Rules - Effective 2/16/16

The Georgia State Board of Workers' Compensation has done some minor housekeeping by tweaking two of the Board's Rules.  

Rule 61(b)(42) has been promulgated for the implementation of a new form.  The new form is called a "WC Change of Information," and it must be used to change any information about parties in the Board's files.  Most parties had previously tackled this problem by filing WC-14s and specifying new information in the form's "Other" box.  Click here to download the new form [PDF].

Rule 102(B)(4) was amended to remove the requirement that the party requesting a hearing must provide the correct name and address for the third-party administrator.  This change is presumably a response to the difficulty that most Claimant's attorneys  faced when filing a claim.  Many of the larger insurers use multiple TPAs, and it is often difficult if not impossible to determine the correct TPA without contacting the insurer directly.

If you have questions about these rule changes or the impact that they might have on you, please contact us.

Governor Deal Signs HB 154

Governor Deal signed House Bill 154 into law on May 6, 2013. Here’s a summary of the new legislation:

1) Limitation of medical treatment for 400 weeks after the injury for non-catastrophic injuries;

2) Provide a 15-day time-frame in which mileage must be reimbursed;

3) Reduce the annual percentage rate for lump-sum payments and advances to 5% (down from 7%);

4) Require an employee who attempts a light-duty job under O.C.G.A. Sec. 34-9-240 to attempt the proffered job for eight cumulative hours or one workday;

5) Increase the maximum temporary total disability rate to $525.00 per week (up from $500.00)’ and,

6) Increase the maximum temporary partial disability rate to $350.00 per week (up from $334.00).

Georgia Senate Approves HB 154 on March 12, 2013

It would appear that the latest amendments to the Georgia Workers’ Compensation Act are very close to being enacted. The Senate unanimously passed House Bill 154 with a vote of 45-0 on March 12, 2013. We anticipate that the current version of the bill will be signed by Governor Deal and will go into effect on July 1, 2013. Again, the changes are summarized as follows:

1) Limitation of medical treatment for 400 weeks after the injury for non-catastrophic injuries;

2) Provide a 15-day time-frame in which mileage must be reimbursed;

3) Reduce the annual percentage rate for lump-sum payments and advances to 5% (down from 7%);

4) Require an employee who attempts a light-duty job under O.C.G.A. Sec. 34-9-240 to attempt the proffered job for eight cumulative hours or one workday;

5) Increase the maximum temporary total disability rate to $525.00 per week (up from $500.00)’ and,

6) Increase the maximum temporary partial disability rate to $350.00 per week (up from $334.00).

Georgia General Assembly Considers Sweeping Changes to Workers' Compensation Law

The Georgia General Assembly is considering a fairly comprehensive overhaul of the Workers’ Compensation Act. The bill has already resoundingly passed the House on February 11, 2013. House Bill 154 proposes the several changes to the Act. The most sweeping proposed change would limit medical benefits to 400 weeks from the date of the accident. Also controversial is the proposal to require an employee to attempt a light-duty job for an entire day before “quitting” the job to have benefits reinstated.

Here’s a nutshell of the proposed changes:

1) Limitation of medical treatment for 400 weeks after the injury for non-catastrophic injuries;

2) Provide a 15-day time-frame in which mileage must be reimbursed;

3) Reduce the annual percentage rate for lump-sum payments and advances to 5% (down from 7%);

4) Require an employee who attempts a light-duty job under O.C.G.A. Sec. 34-9-240 to attempt the proffered job for eight cumulative hours or one workday;

5) Increase the maximum temporary total disability rate to $525.00 per week (up from $500.00)’ and,

6) Increase the maximum temporary partial disability rate to $350.00 per week (up from $334.00).

Feel free to contact us if you would like us to send you a copy of the proposed legislation or update you on its progress.