Spring 2006 Ann Bishop, Editor S N Examining the ... · strophic injury under this subsec-tion has reached the age of eligi-bility for retirement benefits as defined in 42 U.S.C

Spring 2006 Ann Bishop, Editor SECTION NEWSLETTER

Since the use of a vocational expert in the workers’compensation arena almost always involves a dis-pute over a catastrophic designation, the first step is

to clarify which statutory definition of “catastrophic” isapplicable.

TThhee LLaaww

Catastrophic claims are governed by O.C.G.A. § 34-9-200.1(g). Five specific injuries are addressed by thatstatute:

1. Spinal cord injuries;2. Amputation; 3. Severe brain or closed head injuries;4. Second or third degree burns over 25 percent of thebody as a whole or more of the face and hands;5. Total or industrial blindness.

Additionally, the statute provides a “catch-all” definitionfor certain cases that do not fall into the specific categories.It is relatively easy for the parties to agree whether a casefalls within the first five definitions. However, the “catch-all” category is not so easy to identify and is the most fre-quent source of litigation.

From July 1, 1992 through June 30, 1995, the “catch-all”provision in § 34-9-200.1(g)(6) defined a catastrophic injuryas:

Any other injury of a nature and severity as has quali-fied or would qualify an employee to receive disabilityincome benefits under Title II with supplemental secu-rity income benefits under Title XVI of the SocialSecurity Act as such Acts exist on July 1, 1992, withoutregard to any time limitations provided under suchAct.

The biggest difference in this version of the “catch-all”provision and the prior version is the considerable weightplaced on the decision granting Social Security benefits toa claimant in assessing catastrophic status.

For accidents occurring from July 1, 1995 to June 30,

1997, the “catch-all” phrase was amended to delete thelanguage which created controlling authority in a favor-able decision from the Social Security Administration(SSA). Specifically, O.C.G.A. § 34-9-200.1(g)(6) was amend-ed to state:

A decision granting or denying disability income bene-fits under Title II or supplemental security incomebenefits under Title XVI of the Social SecurityAdministration shall be admissible in evidence andthe Board shall give the evidence the considerationand deference due under the circumstances regardingthe issue of whether the injury is a catastrophic injury.

For accidents occurring from July 1, 1997 through June30, 2003, the “catch-all” provision was again amended con-cerning work in the national economy. During that period,the “catch-all” provision read as follows: “Any other injuryof a nature and severity that prevents the employee frombeing able to perform his or her prior work and any workavailable in substantial numbers within the national econ-omy for which such employee is otherwise qualified.”(Emphasis added).

Most recently, effective July 1, 2005, the Legislature sig-nificantly amended the “catch-all” definition of a cata-strophic injury. The present version of O.C.G.A. § 34-9-200.1(g)(6) reads as follows:

“A” Any other injury of a nature and severity that pre-vents the employee from being able to perform his orher prior work and any work available in substantialnumbers within the national economy for which suchemployee is otherwise qualified; provided, however, ifthe injury has not already been accepted as a cata-strophic injury by the employer and the authorizedtreating physician has released the employee to returnto work with restrictions, there shall be a rebuttablepresumption during a period not to exceed 130 weeksfrom the date of the injury, that the injury is not a cata-strophic injury. During such period, in determining

Examining the Vocational ExpertBy David R. BergquistThe Bergquist Law Firm, LLC

See Vocational Expert on page 3

Ifeel privileged and honored to be addressing theWorkers’ Compensation Section of the State Bar ofGeorgia as its chairman.

The one constant in my practice of workers’ compensa-tion law for more than 28 years has been the professional-ism and camaraderie by our members, for the Bar in gen-eral, and each other specifically. I have appeared beforefour chairmen, one chairwoman, nine directors (I think)and at least 29 Administrative Law Judges during mytenure. I have opposed hundreds of different lawyers aswell.

The chairmen, chairwoman, directors, AdministrativeLaw Judges and lawyers all have different personalities,demeanors and styles, but the one thing the overwhelmingmajority has is dedication and respect for the workers’compensation laws of Georgia. We are very fortunate tohave men and women who are committed to practicinglaw with fairness and principle.

Our section is strong and growing. We currently have919 members and are the ninth largest section of the Bar.Due to the nature of our practice (i.e. accelerated discov-ery, fast track hearings), we interact with one anotherprobably more than most any other practice area.

The Executive Committee of our Section presently con-sists of Ann Bishop, Joe Leman, Staten Bidding, LynnOlmert and Cliff Perkins. Joining that list is our newestmember, John Blackmon of Drew, Eckl & Farnham. Eachwill serve as chairperson in the order listed.

The ICLE Worker’s Compensation Seminar at Sea Palmson St. Simons Island is scheduled for Oct. 5-7, 2006. Thechairs of the event are Administrative Law Judge MelodieBelcher, claimant attorney Phil Eddings and defense attor-ney, B. Kaye Katz-Flexer. They are currently in the processof putting together another great seminar. If anyone hassuggestions for topics for the seminar, please feel free tocontact one of the chairs.

If any “COMPER” has not attended the October seminar,you are really missing a tremendous three days andnights. While the seminar itself is full of very informativeand valuable information, the informal beach atmosphereat St. Simons makes for interesting conversation, newfriendships and a very good time. A sincere effort shouldbe made by every Section member to attend this seminar.

Hopefully, by the time you read this, you will have seenthe solicitation for “A Just and Noble Cause! The GeorgiaStory of Workers’ Compensation” which is a history ofGeorgia Workers’ Compensation Law. This book, thebrainchild of Mark Gannon and others is a must read for

any worker’s compensation practitioner who wants to seehow the system started and to see how we got to wherewe are! Please buy a copy for yourself, partners, associatesand your clients. Profits from the book sale go to Kids’Chance.

As I take over as chair of the Workers’ CompensationSection from Luanne Clark, I am sincerely thankful for herguidance which should make the transition smooth andproblem free.

I look forward to serving as chairman and invite anySection member to call or write with any ideas, questions,complaints or comments about our bar!

2 Workers’ Compensation Law Section

Comments From the Incoming ChairBy Timothy V. [email protected]

Spring 2006 3

whether an injury is catastrophic,the Board shall give considerationto all relevant factors including,but not limited to, the number ofhours for which an employee hasbeen released. A decision granti-ng or denying disability incomebenefits under Title II or supple-mental income benefits underTitle XVI of the Social SecurityAct shall be admissible in evi-dence and the Board shall givethe evidence the considerationand deference due under the cir-cumstances regarding the issue ofwhether the injury is a catastroph-ic injury; provided however, thatno presumption shall be createdby any decision granting or deny-ing disability income benefitsunder Title II or supplementalsecurity income benefits underTitle XVI of the Social SecurityAct.

“B” Once an employee who isdesignated as having a cata-strophic injury under this subsec-tion has reached the age of eligi-bility for retirement benefits asdefined in 42 U.S.C. Section416(1), as amended March 2, 2004,there shall arise a rebuttable pre-sumption that the injury is nolonger a catastrophic injury; pro-vided, however, that this pre-sumption shall not arise uponreaching early retirement age asdefined in 42 U.S.C. Section416(1), as amended March 2, 2004.When using this presumption, adetermination that the injury is nolonger catastrophic can only bemade by the Board after it hasconducted an evidentiary hearing.

Despite the myriad of amendments,the general “catch-all” definition of acatastrophic injury has remainedessentially the same since July 1, 1997.In short, the Claimant has the burdenof proof to show that his/her injury isof such a severity that it:

1. Prevents the employee frombeing able to perform his/herprior work; and

2. Prevents the employee fromperforming any work available insubstantial numbers within thenational economy for which suchemployee is otherwise qualified.

GGeenneerraall CCoonnssiiddeerraattiioonnss

Although the issues and potentialstrategies for an examination of anyexpert witness are mostly determinedon a case-by-case basis, there aresome issues which apply universallyto all experts – including a vocationalexpert.

The first step in examining anyexpert witness is to clarify his/herqualifications. Interestingly, there areno state licensures or certifications inthe State of Georgia to officially quali-fy an individual to work as a voca-tional expert. In general, a vocationalexpert will often have obtained atleast a masters degree in rehabilita-tion counseling or other closely relat-ed field and will have considerablework experience in the field of voca-tional rehabilitation prior to undertak-ing the role of a vocational expert. Itshould be noted that although similar,experience in vocational rehabilitation(finding an individual a job) does notinvolve the same analysis as provid-ing an expert vocational opinion con-cerning the general employability ofan individual.

When clarifying the vocationalexpert’s qualifications, an attorneyshould closely scrutinize the expert’swork history. Specifically, the expertshould be questioned concerning thenumber of times he/she has providedtestimony for litigation, how often theexpert has worked for the claimant’sattorney, and what percentage of theexpert’s prior opinions have been “infavor of” the employee. An attorneyshould make every effort throughInterrogatories and Request forProduction of Documents to obtainthe specific case names/numbers of alllitigation in which the expert had pre-viously provided an opinion. Ofcourse, obtaining the expert’s priorreports in those cases could beextremely helpful.

Prior to conducting any formalcross-examination of a vocational

expert, an attorney should use thestandard discovery process to clarifyall of the materials/documents/data-bases which the expert used to arriveat his/her opinion. It is not uncom-mon for a vocational expert to, at leastin part, base an opinion on incompleteor inaccurate medical records and/orinformation received from theemployee. In fact, vocational expertsoften provide their opinion withoutever having met the employee.

Since most vocational experts havesignificant experience in the SocialSecurity arena, they will usually relyon various “objective standards”emphasized in Social Security hear-ings. These materials include theDictionary of Occupational Titles, theSelected Characteristics of OccupationsDefined in the Dictionary ofOccupational Titles, the StandardOccupational Classification Manual, theRevised Handbook for Analyzing Jobs,the Occupational Outlook Handbook,published by the Department ofLabor; the County Business Patternsand the Census Surveys published bythe Bureau of Census; andOccupational Surveys of Light andSedentary Jobs prepared for the SocialSecurity Administration by variousState Agencies. A detailed examina-tion of any vocational expert shoulddetermine which publications theevaluator used in forming his/heropinion, whether the most recent ver-sion of those publications was used,and whether the expert understandsthe proper use of those publications.

PPrreeppaarraattiioonn FFoorr tthhee CCrroossss-EExxaammiinnaattiioonn ooff aa VVooccaattiioonnaall EExxppeerrtt

As with any expert, an effectivecross-examination of a vocationalexpert begins long before the deposi-tion or hearing. A thorough prepara-tion should include some or all of thefollowing:

1. Obtain all medical records con-cerning the employee; 2. Clarify the opinions of the rele-vant treating physicians;3. Obtain an Independent MedicalEvaluation (IME) with a relevantspecialist;


Vocational ExpertContinued from page 1


Tennis elbow was first describedby Henry J. Morris in 1882 afterhe noted elbow pain in his

patients who enjoyed “lawn tennis.”Since that time, this entity, also knowas lateral epicondylitis, has been rec-ognized not only in athletes but inseven to 10 percent of the generalpopulation. In the workplace, thenumber of claims submitted for later-al epicondylitis continues to be stableor is rising, depending on the state.Therefore, it is imperative that allthose who encounter or manage“repetitive motion disorders” befamiliar with this entity.

AAnnaattoommyy

General knowledge of elbow anato-my is necessary to understand thesymptoms, causes and treatments oflateral epicondylitis. In its simplestform, the elbow can be thought of as ahinge joint. One bone from the upperarm, the humerus, and the two fore-arm bones, the radius and ulna, artic-ulate at the elbow to form that hinge.The most superficial portion of thehumerus can be palpated on eitherside of the elbow underneath a thinlayer of skin and soft tissue. Thesebony protuberances are called epi-condyles and are individually namedthe medial (inside) and lateral (out-side) epicondyles.

Muscles from both the upper armand forearm cross the elbow in orderto provide for joint motion. In addi-tion, a majority of the muscles thatmove the joints at the wrist and fin-gers actually cross the elbow, originat-ing, not from the forearm, but fromthe distal portion of the humerus. Ingeneral, muscles that extend (straight-en) the wrist and fingers originatefrom the lateral epicondyle, and thosethat flex (bend) those joints originatefrom the medial epicondyle.

The muscles that are involved with

lateral epicondylitis are the wristextensors. In total, there are threewrist extensors, all sharing a commonorigin off of the lateral epicondyle.Two of them, the extensor carpi radi-alis longus and the extensor carpiulnaris, are superficial muscles lyingjust below the skin. The extensor carpiradialis brevis (ECRB) lies deeper,below the other forearm muscles, andits tendon is where the pathologicchanges associated with tennis elboware found.

Lateral epicondylitis is misleading,as the suffix “itis” suggests acuteinflammation as the primary process.In actuality, tennis elbow is the resultof degeneration of the tendon of theECRB and would be properly labeledas a tendonosis, with an underlyingchronic inflammation. While this mayseem like an exercise in semantics,this distinction between acute inflam-mation and degeneration will dictatetreatment rationale.

SSyymmppttoommss

With a good understanding of theanatomy, the symptoms and exacer-bating factors of tennis elbow can bededuced. The primary complaint ofpatients is pain localized to the lateralepicondyle. This pain can vary inseverity from a minor ache to a sharp,knife-like sensation. Often, patientswill have pain radiating distally fromthe lateral epicondyle into the forearmmuscles along the course of the ECRBas it makes its way to the wrist.

Symptoms are worsened by activi-ties, which involve forceful or repeti-tive wrist extension. To be true to thisentity’s colloquial name, imagine hit-ting a one-handed backhand in tennis.The muscles extending the wrist mustresist the force of the ball against theracquet. Additionally, repetitive grip-ping activities will also exacerbate thepain as the wrist comes into extension

whenever a strong, tight fist is made.

As the condition worsens, patientswill feel pain with elbow motion, aswell, particularly upon straighteningof the elbow. Because the ECRB origi-nates before the elbow, then crossesthe elbow joint, the muscle stretcheswhen the elbow is straightened. Thisstretch produces pain. The ECRB alsocrosses the wrist joint and, therefore,forceful wrist flexion increases thestretch on the muscle, and with it, theperceived pain.

CCaauusseess

Tennis elbow typically occurs inpatients between the ages of 40 and 60with a near-equal distributionbetween men and women. Most com-monly, tennis elbow is not the resultof an isolated traumatic event. On thecontrary, repetitive activities involvingthe use of the elbow, wrist, and handlead to attritional tearing of the ECRBorigin. Therefore, it is not uncommonfor patient to begin having symptomsone or two days following the exacer-bating activity.

A traumatic event can, however,lead to the onset of symptoms. Thisevent may come in the form of adirect blow to the lateral aspect of theelbow or an indirect injury involvingtwisting of the forearm and elbow.These types of the events can causeinjury to the ECRB primarily, butoften, there is underlying, low-grade,asymptomatic pathology of the ten-don from repetitive use which is exac-erbated by the acute injury.

PPhhyyssiiccaall EExxaamm

On exam, the patient will haveexquisite tenderness to deep palpationjust distal to the lateral epicondyleover the common origin of the wristextensor muscles. The patient oftenwill point directly to this area of ten-derness when asked to locate the

Tennis, Anyone? The Causes andManagement of Lateral EpicondylitisBy John Dalton, M. D.Georgia Hand and Microsurgery

Spring 2006 5

pain. Occasionally, this tendernesswill be present over the musclesthemselves further down the forearm.There may be some associatedswelling at the lateral elbow, but thisis usually not the case.

Certain provocative maneuvers canbe performed to help clarify and con-firm the diagnosis. The patient isasked to extend the wrist againstresistance, stressing the ECRB. Thiswill produce pain localized to the lat-eral elbow. Passive flexion of the wristwith the elbow extended will alsoreproduce the pain as the ECRB isstretched.

Imaging studies are often per-formed but rarely of much value.Plain radiographs of the elbow mayshow calcification in the tendon justoff of the lateral epicondyle. Bothultrasound and MRI had been used toidentify pathologic changes in theECRB tendon with varying degrees ofsuccess. Usually, these tests arereserved for patients who have failedto improve after conservative treat-ment and when surgical options arebeing considered.

NNoonnssuurrggiiccaall TTrreeaattmmeenntt

Activity modification, physical ther-apy and non-steroidal anti-inflamma-tory drugs (NSAIDs) are the main-stays of early treatment. Simply elimi-nating the activity, which caused orworsened the symptoms will oftenlead to resolution over a few weeks.But, because wrist extension andelbow motion are necessary for nearlyevery basic function of the arm andhand, eliminating these activities maybe unrealistic. Athletes find it difficultto stop their sport for several months,and manual laborers often do nothave light-duty options available tothem.

A physical therapy program isdesigned to stretch, strengthen, andcondition the extensor muscles. Oneeffective stretch is to pull the wristinto flexion with the opposite handwhile holding the elbow straight.Often this must first be performed ini-tially with the elbow flexed because oftightness and pain. After flexibility isimproved, light-weight strengthening

exercises are performed for all of theforearm muscles. The weight and rep-etitions are increased as pain decreas-es. The patient must then remain on astretching program to help preventrecurrences.

Armbands, which can be found atmost drug stores, are used around theproximal forearm. The theory behindthese bands is that they take stress offof the ECRB origin by transferring thestress to the place where the armbandis applied. Both the science and theclinical results behind this theory arenot entirely clear. However, manypatients attest to the effectiveness ofthe bands and they are widely usedfor this, and other, tendonopathies.

NSAIDs (ibuprofen, naprosyn) areuniversally given to all patients thatcan tolerate them as a pain reliever,but they also help to combat thechronic inflammation associated withthe extensor muscle degeneration. Acorticosteroid injection into the ECRBorigin is offered to patients who fail toimprove with therapy or who havedifficulty performing therapy due tosevere pain. This injection targets theinflammation directly. These injec-tions are not without risks, however.Loss of skin pigmentation and atro-phy or loss of the subcutaneous fatover the epicondyle can be seen and isoften permanent. Therefore, it is bestto limit the number of and increasethe interval between injections.

No controlled, scientific studieshave been performed which clearlydocument the success rate of tenniselbow treatment. Some physicians feelthat, given enough time, all patientswith lateral epicondylitis will improveregardless of treatment. However, inpractice, this improvement can beslow. Symptomatic relief followingthe above protocol can be expected in80-90% of patients after a year oftreatment.

In an attempt to shorten the often-lengthy recovery, additional treatmentoptions have been pioneered. Theseinclude high-intensity shockwavetherapy, ultrasound, blood injection,and botulinum toxin (a.k.a. Botox)injection. The documented successrate of all of these procedures is

between 70-80%, while some studiessuggest these modalities are of nobenefit. Once again, no controlledstudies have been performed compar-ing these treatment methods with tra-ditional methods. Therefore, sincenearly the same percentage of patientsimproves with no treatment, the truebenefit of these alternate therapiesremains in question.

SSuurrggiiccaall TTrreeaattmmeenntt

Surgical treatment is reserved fortruly recalcitrant cases of lateral epi-condylitis. In general, if, after sixmonths to a year, patients fail toimprove following a rigorous therapyprogram and multiple corticosteroidinjections, they may be surgical candi-dates.

Open release of the extensor origincan be performed through a lateralincision over the epicondyle.Dissection between the superficialmuscles of the extensor origin isundertaken to expose the tendon ofthe ECRB deep in the wound. Often,at this point, degenerative tissue canbe identified at the ECRB origin nearthe lateral epicondyle. This portion ofthe tendon is excised and the tendonis repaired. Alternatively, the degener-ative portion of the ECRB can beaddressed arthroscopically. Theundersurface of the ECRB can bevisualized with an arthroscope frominside the joint and released.

Similar to the alternative non-opera-tive therapies, there are no controlledstudies that document which proce-dure is more effective. The current lit-erature suggests approximately 80%success after surgical treatment.

WWoorrkkeerr’’ss CCoommppeennssaattiioonn PPooppuullaattiioonn

There exists a general sentimentthat patients in the worker’s compen-sation population are less likely toimprove with surgical treatment. Awell-designed investigation by agroup of surgeons at the University ofPittsburg School of Medicine foundthis not to be the case. Pain relief,symptom recurrence, satisfaction, andreturn to work were similar betweenboth the worker’s compensation and

See Tennis Elbow on page 20


Going PaperlessAn Update from the State BoardBy Jan DillardState Borad of Workers’ Compensation Project Manager

The State Board of Workers’ Compensation imple-mented the new ICMS electronic document manage-ment system on October 1st, 2005. When fully imple-

mented, ICMS will enable the SBWC to perform all dutiesassociated with claims management, alternative disputeresolution, trial, appeals, settlements, rehabilitation, man-aged care, and licensure using an Internet-based system.

SBWC has made great progress and scanned over100,000 documents in the past seven months. While wehave experienced some unexpected issues and had a fewgrowing pains, we already see signs of greatness on ourhorizon.

TThhee NNeeww CCllaaiimm NNuummbbeerr

The ICMS document management system generates aClaim Number for each new claim. This “Board ClaimNumber” appears on every form. It is a 10-digit numberwith the first four digits identifying the year the claim iscreated at the Board (not the year of the injury). Unlessyou are submitting a claim-initiating document (e.g. a WC-14), you must include this claim number on every claimdocument you submit.

All claim documents generated by the Board and sent toyou will have this new Claim Number. All system-generat-ed electronic notifications will include the new ClaimNumber to assist you in all of your future document fil-ings.

This number is a unique identifier for the claim and dis-tinguishes it from other claims. Please note that if there aremultiple claims on file for one claimant, each claim willhave a unique claim number.

EElleeccttrroonniicc NNoottiiffiiccaattiioonnss

Party to the Claim

Another important feature of ICMS is system-generatedemail notifications. Everyone identified as a party to theclaim, for whom we have an email address, will receive anemail notice when a new document goes to the claim file.If you are a Party to the Claim, you will receive a noticethat a document has been successfully submitted to theBoard. For a few weeks, many people were receiving mul-tiple copies of the same notice. This has been corrected.You should no longer receive multiple copies of the samenotice.

Submitter Notification

In addition, there is an email acknowledgement to the

person submitting the document (who may not be party tothe claim). If you submit a document, you will receive anemail confirming receipt of the document. Please note: ifthe submitter is also a party to the claim, that person willreceive two notices.

Alternate Email Addresses

Many people have responded to the Board’s request forprimary and secondary e-mail addresses. At this time, onlythe primary address is being used. Secondary e-mail address-es will not be activated until Phase 3. Until that time, youmight consider using the Rules feature of your personal e-mail application to forward the notice to those who needto be notified.

Notifications to the Wrong Person

For insurers, e-mail notifications are being sent to theindividual identified as the SBWC corporate contact. Thisindividual is often a regulatory or licensing officer, not aclaims manager. We are working on a change that allowsthese corporate email addresses (which are in the databasefor licensing and permitting activities) to be omitted fromreceiving individual claim notifications. This change hasnot yet been completed.

Attorney Information

The Board is building a database for storing attorneyinformation. This database includes contact information aswell as the unique Georgia Bar number for each attorney.It is imperative that each attorney who practices Workers’Compensation law in Georgia forwards the followinginformation to [email protected]. The Georgia BarNumber is critical.

Attorney Primary E-mail addressAlternate E-mail addressPhone NumberGeorgia Bar Number (include on the first page of all

documents)Attorney information is for each individual attorney, not

a law firm. If an attorney wants claim-related informationto go to a central law firm e-mail address, they must sub-mit this address as their primary e-mail address.Alternative e-mail addresses will not be used until Phase 3.

Causing Possible Delays

Several things can cause a delay in the processing offorms. Omitting critical information, putting the wronginformation in specified fields, or changing the form – all

Spring 2006 7

can cause the document to be sus-pended or sent to the wrong process.

Please ensure the following:

Complete the Insurer or Self-Insurer information (not just theTPA or Claims Office)

Use the correct form (If you arenot sure which form to use, referto the forms and Board Rules,and in particular Board Rule61(b), on the SBWC website:www.sbwc.georgia.gov)

Do not change the fields toreflect something different thanwhat is on the form.

Be sure to include the BoardClaim Number

Include the County of Injuryand accurate date of injury

In addition, please send only onecopy of a form to the Board. Do notsubmit multiple copies to ClaimsProcessing and do not file more thanone copy of legal documents going toa judge, for example, a motion orbrief.

If the information is not completedsufficiently for processing, it will bereturned. Please always complete thesection for SBWC ID # which identi-fies the carrier or self-insured entity.This number can be located in analphabetical listing on the SBWCwebsite (www.sbwc.georgia.gov).

A Look to the Future

We have already created over15,000 new claims. These are totallyelectronic claims. This number isgrowing every day. Thousands ofother claims are in the system butthey are a combination of paper andelectronic data. We will continue towork in both worlds for quite sometime. The new system challenges usas we work with a totally differentway of life but we already see excit-ing new capabilities for easy andcomprehensive access to information.

PaperlessContinued from page 6

4. Have the employee undergo aFunctional Capacities Evaluation(FCE);5. Conduct surveillance of theemployee;6. Use standard discovery tech-niques to obtain as much informa-tion as possible about the expert,his/her prior opinions, and thesupporting basis for his/her opin-ions;7. Conduct a detailed depositionof the employee;8. Conduct a “skip-trace” to deter-mine any prior medical treatmentor litigation involving theemployee; and9. Obtain a copy of the employee’scomplete file from the SSA.

IIssssuueess SSppeecciiffiicc TToo VVooccaattiioonnaallEExxppeerrttss

In short, a vocational expert’s task isto determine the employee’s ResidualFunctional Capacity (RFC) and deter-mine whether he/she is employableby performing a labor market surveyand/or reviewing a “standardized”list/database of occupations. The mostobvious step in determining anemployee’s RFC is to clarify his/hercurrent medical status/restrictions. Inaddition to verifying that the voca-tional expert reviewed a completecopy of the employee’s medicalrecords, an effective cross-examina-tion should also closely review whichmedical opinions the vocationalexpert relied most heavily upon.

As an example, a medical reportfrom the claimant’s family doctor maystate, “The patient states that his backbegins to hurt after sitting for 30 min-utes.” An effective cross-examinationwill emphasize the family physician isnot a “specialist” and did not specifi-cally restrict the employee to sittingonly 30 minutes at a time. Instead, thefamily physician simply repeated theemployee’s own self-serving, unsup-ported statements. Obviously, anysurveillance video, medical record orother evidence indicating the claimantis capable of sitting for more than 30

minutes should be raised in the cross-examination of the vocational expert.

An effective cross-examinationshould also clarify which medicalconditions/restrictions are related tothe on-the-job injury, as opposed toother unrelated personal health prob-lems – especially in cases involvingolder employees. In these cases, theremay be significant pre-existing con-tributors to the claimant’s current con-dition which are unrelated to the acci-dent, and may help support a defenseagainst a catastrophic designation.

It is also important to determine ifthe vocational evaluator and the med-ical providers have the same under-standing of the words used todescribe the employee’s restrictions.As an example, the medical providermay simply indicate the employee islimited to “light” or “sedentary”work. If, as is usually the case, thevocational evaluator relies on defini-tions from the SSA, the expert maygive these restrictions a meaning dif-ferent than the doctor intended.

In addition to clarifying theemployee’s medical condition/restric-tions, in order to determine anemployee’s RFC, a vocational expertwill also look at the employee’s age,education and work experience. Aneffective cross-examination shouldclosely scrutinize whether the voca-tional expert is basing an opinion onthe highest level of school completedby the employee or by his/her actual“intelligence” level. There is clearly adifference between education leveland intelligence. Two individuals whoeach graduated from high school mayhave very different levels of intelli-gence. In this regard, the attorneyshould investigate the types of classestaken by the employee and the gradeshe/she obtained in them. There areseveral “intelligence tests” which may(or may not) provide a more accuratepicture of the employee’s abilitiesthan simply looking at the last level ofeducation he completed.

The vocational expert should alsobe closely questioned about what rolethe employee’s age played in deter-




mining his/her employability. Often, avocational expert will rely on theSocial Security guidelines which givesignificant deference to individualsover the age of 49. As with two indi-viduals who completed the same levelof education, two individuals of thesame age often have dramatically dif-ferent abilities to adapt to new worksituations.

Under the current “catch-all” defini-tion of a catastrophic injury, theemployee (via the vocational expert)has the burden to show that his/herinjury is of such a severity that it (1)prevents the employee from beingable to perform his/her prior work;and (2) prevents the employee fromperforming any work available in sub-stantial numbers within the nationaleconomy for which the employee isotherwise qualified. An effectivecross-examination will pin down thevocational expert on exactly “how”he/she made a determination aboutemployability.

Specifically, the vocational expertshould be questioned closely abouthis/her knowledge of the employee’sprior work. Although there is no spe-cific opinion addressing this issue, itappears the State Board has adoptedthe position of the Social SecurityAdministration (SSA); which is thatone should look at any work theemployee performed for any employ-er during the 15 year period prior tothe compensable accident.Unfortunately, employees often givethe vocational expert incomplete/inac-curate information about their workhistory. Moreover, even if the voca-tional expert has an accurate list ofthe employee’s prior jobs during therelevant 15 year period, the vocationalexpert may not be completely familiarwith the actual job duties, exertionallevel and skill level required in eachone of those positions.

An employee may inform the voca-tional expert that he was a welder forthe entire 15 year period. After simplyconsulting the Dictionary ofOccupational Titles, the vocationalexpert would then claim to know

enough about the duties, skill leveland exertional level required in thatjob to determine if the employeecould return to that type of work.Cross examination of the expert mayprovide an opportunity to show thereality of the employee’s work experi-ence is significantly different fromwhat is described in a database.

As outlined, in order to support acatastrophic designation (under thestatute’s current version), the voca-tional expert must not only opine theemployee is unable to perform hisprior work, but also that the injuryprevents the employee from perform-ing any work available in substantialnumbers within the national economyfor which the employee is otherwisequalified. The phrase “within thenational economy” is defined by theSSA as “work which exists in signifi-cant numbers either in the regionwhere such individual lives or in sev-eral regions of the county.” 42 U.S.C. §423(d)(1). Accordingly, the vocationalexpert should be questioned closelyconcerning his/her methodology forreviewing potential jobs and the geo-graphic scope of that search.

The vocational expert relies onUnited States Department of LaborCensus Data and State Department ofLabor Occupational EmploymentStatistics Data to extrapolate estimatesof numbers of existing jobs. A com-mon error is accepting numbers aspublished for a category of job ratherthan further breaking down the totalinto reasonable numbers for each jobincluded in the category. This canoften result in an inflated estimation.For example, within the category of“cashier,” there are at least 26 sepa-rate jobs – each with different exer-tional levels (sedentary and light) andwith different skill levels (unskilled,semi-skilled and skilled). Examples of“cashier” jobs include parking lotcashier (light, unskilled), grocerycashier (light, semi-skilled), checkcashier (sedentary, semi-skilled).There should be estimated numbers ofexisting jobs for each.

Finally, an effective cross-examina-tion should carefully scrutinize howthe vocational expert defined work

“for which such employee is other-wise qualified.” This language wasadded to O.C.G.A. § 34-9-200.1(g)(6)by the General Assembly in 1997, andthere is no case law interpreting exact-ly what this phrase means.Presumably, the phrase addresses twodifferent abilities of the Claimant: (a)the ability to perform the job from atransferable skills perspective; and (b)the ability to perform the job from aphysical perspective.

As has already been discussed,when determining if an employee isable to perform a job “from a transfer-able skills perspective,” the vocationalexpert will take into account theclaimant’s work history, age and edu-cation. As has been shown, an effec-tive cross-examination will require thevocational expert to clarify exactlyhow he analyzed each one of thesefactors.

When determining if an employee isable to perform a job “from a physicalperspective,” the vocational expertwill use medical records to determinethe employee’s physical abilities andcompare them with the job require-ments for each potential occupation asoutlined in some generalized data-base. As discussed previously, aneffective cross-examination can callinto question the validity of the voca-tional expert’s opinion concerning theclaimant’s physical restrictions.Likewise, under cross-examination,the vocational expert should be ques-tioned about his/her detailed knowl-edge of the actual skill level and exer-tional level required in the variousoccupations surveyed.


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O.C.G.A. § 34-9-8 (2005)§ 34-9-8. Liability of principal contractor or subcon-tractor for employee injuries (a) A principal, intermediate, or subcontractor shall beliable for compensation to any employee injured whilein the employ of any of his subcontractors engagedupon the subject matter of the contract to the sameextent as the immediate employer.(b) Any principal, intermediate, or subcontractor whoshall pay compensation under subsection (a) of thisCode section may recover the amount paid from anyperson who, independently of this Code section,would have been liable to pay compensation to theinjured employee or from any intermediate contractor.(c) Every claim for compensation under this Code sec-tion shall be in the first instance presented to and insti-tuted against the immediate employer, but such pro-ceedings shall not constitute a waiver of the employ-ee’s right to recover compensation under this chapterfrom the principal or intermediate contractor. If suchimmediate employer is not subject to this chapter byreason of having less than the required number ofemployees as prescribed in subsection (a) of CodeSection 34-9-2 and Code Section 34-9-124 does notapply, then such claim may be directly presented toand instituted against the intermediate or principalcontractor. However, the collection of full compensa-tion from one employer shall bar recovery by theemployee against any others, and the employee shallnot collect a total compensation in excess of theamount for which any of the contractors is liable.(d) This Code section shall apply only in cases wherethe injury occurred on, in, or about the premises onwhich the principal contractor has undertaken to exe-cute work or which are otherwise under his control ormanagement.

IInnttrroodduuccttiioonn

Typical worker’s compensation cases involve an employ-ee who works for an employer with three or more employ-ees who has workers’ compensation insurance. However,what happens when you call the State Board of Workers’Compensation and find out that your employer is unin-sured? Or, what happens when your employee works forone subcontractor on an irregular basis and is injured? Inthese situations, you need to investigate whether or notthere are “statutory employers” who may be responsiblefor paying your employee workers’ compensation benefits.

Similarly, if you represent an employer who hired other

workers’ to perform tasks and then one of their employeesis injured, you need to investigate whether your employermay be considered a “statutory employer” under theWorkers’ Compensation Act. In addition, if someone work-ing on your clients’ job files a personal injury suit againstthe contractor, then the Statutory employer code sectionmay apply and may insulate your client from personalinjury suits. If your client would be considered a statutoryemployer, then the exclusive remedy provision of theWorkers’ Compensation Act applies and protects yourclient.

O.C.G.A. § 34-9-8 (quoted above) is intended to ensurethat employees in construction and other industries arecovered by workers’ compensation. Consequently theWorkers’ Compensation Act places an increased burden, inthe form of potential liability for workers’ compensationbenefits, on the statutory employer, thus encouraging thestatutory employer to require subcontractors to carryworkers’ compensation insurance. Wright Assocs. v. Rieder,247 Ga. 496, 277 S.E.2d 41 (1981); Franks v. Avila, 200 Ga.App. 733, 409 S.E.2d 564 (1991).

SSttaattuuss ooff SSttaattuuttoorryy EEmmppllooyyeerr

The quid pro quo for the obligation to pay workers’ com-pensation benefits is the immunity from suit granted toemployers. Those responsible for paying workers’ compen-sation benefits, therefore, are not subject to double liability.While the injured employee is guaranteed the right to suea third party responsible for the injury, no injured employ-ee can sue those responsible for the payment of workers’compensation benefits. See O.C.G.A. § 34-9-11. Because theimmunity is complete, there is an advantage to many busi-nesses to become a statutory employer when they may notbe the injured employee’s direct employer. The goal isimmunity from suit.

A statutory employer is not a true employer as that termis used generally but is one upon whom liability for work-ers’ compensation benefits is imposed by statute. O.C.G.A.§ 34-9-8(a) (quoted above.) The obligation to pay compen-sation is imposed upon a contractor who engages subcon-tractors who have employees. The language of the statuteestablishes that the liability for compensation is to an“employee” and, therefore the employee of any subcon-tractor is treated as if that employee were an employee ofthe general contractor.

RReeqquuiissiitteess ttoo LLiiaabbiilliittyy ffoorr BBeenneeffiittss

Sole Proprietors: The liability to pay an employee of asubcontractor does not extend to the subcontractor when

Statutory Employment

*With Thanks to C. Wade McGuffey, Jr.

By Kathryn C. Bergquist, [email protected]


the subcontractor is a sole proprietorunless the sole proprietor is also adirect employee. When the subcon-tractor is operated as a sole propri-etorship, the sole proprietor is not anemployee of the subcontractor but isin fact the employer. Since a sole pro-prietor cannot be his or her ownemployee, a statutory employerwould not be liable for any compensa-tion benefits to the sole proprietor.Typically a sole proprietor does notnotify his or her agent or insurancecompany of the election to be treatedas an employee and consequentlythey are not covered. See Sherwin-Williams Co. v. Escuadra, 224 Ga. App.894, 482 S.E.2d 505 (1997). ; Kaplan v.Pulte Home Corp., 245 Ga. App. 286,537 S.E.2d 727 (2000).

A sole proprietor or partner mayelect to be treated as an employee forpurposes of the Workers’Compensation Act. O.C.G.A. § 34-9-2.2. Once an election is made, theindividual subcontractor is treated thesame as any other employee.Subsequent Injury Trust Fund v. LumleyDrywall, 200 Ga. App. 703,409 S.E.2d254 (1991). A sole proprietor wouldnot, however, be entitled to benefitsfrom a statutory employer because theelection is applicable only to coveragepurchased by the sole proprietor. Ifthe sole proprietor has coverage, thestatutory employer’s liability is neverrealized.

An employer who expresslyexempts himself/herself from cover-age under O.C.G.A. § 34-9-2.2 isbarred from making a claim againstthe employer’s own company andemployer could not claim underO.C.G.A. § 34-9-8 (a) to be an employ-ee injured while employed by thecompany in its capacity as a subcon-tractor. See Greg Fisher, Ltd. v. Samples,238 Ga. App. 825, 520 S.E.2d 280(1999).

O.C.G.A. § 34-9-8 also refers to the“subject matter of the contract.” Thismeans that a contractual relationshipis required for liability to be imposed.Not all contractual relationships arecovered, but only those where a con-tract creates a subcontractor relation-ship. For example, there is no contrac-

tor/subcontractor relationship whenthe contract is merely for the sale ofgoods. Evans v. Hawkins, 114 Ga. App.120, 150 S.E.2d 324 (1966). Whenthere is a contract for the sale ofgoods, the contract to sell must alsorequire one of the parties to rendersubstantial services in connectionwith the sale of goods for either thebuyer or seller, or both, to be consid-ered a contractor for purposes ofO.C.G.A. § 34-9-8. See Grade ABuilding Systems v. Trine, 260 Ga. 252,391 S.E.2d 764 (1990).

No matter what the scenario, theemployer must still be subject to theWorkers’ Compensation Act, so theymust have three or more employees.O.C.G.A. § 34-9-2(a). A general con-tractor must therefore have three ormore employees before it is responsi-ble for the payment of any benefits tothe employee of a subcontractor. SeeBradshaw vs. Glass, 252 Ga. 429, 314S.E.2d 233 (1984). It is also improperto “stack” the employees of the sub-contractor with those of the generalcontractor to reach the requisite num-ber of employees. See Smith v.Cornette, 173 Ga. App. 577, 327 S.E.2d774 (1985). The claimant has an affir-mative duty to prove that the generalcontractor has the requisite number ofemployees to be subject to the Actbefore the claimant can recover fromthe general contractor. G & M QualityBuilders, Inc. v. Dennison, 173 Ga. App,578, 327 S.E.2d 773 (1985).

PPrroocceedduurree ttoo OObbttaaiinn BBeenneeffiittss

Before proceeding with a claimdirectly against the general contractoras a statutory employer, a claimantmust first make a claim against theimmediate employer. O.C.G.A § 34-9-8(c). If it turns out that the immediateemployer cannot pay because it failedto obtain insurance or is insolvent,there is no waiver of the employee’sright to recover from a statutoryemployer. Many lawyers seem to beparticularly confused by this proce-dure. If the immediate employer isinsured, a claim against the statutoryemployer is improper. If the immedi-ate employer is subject to the Act,however, by reason of having three ormore employees, but did not obtain

insurance, the claim must be institut-ed against the immediate employer,and the statutory employer and itsinsurer in order to insure that theclaim is paid. Only if the immediateemployer is not subject to the Actbecause it has less than the requisitenumber of employees can a claim bemade directly against the statutoryemployer. O.C.G.A. §34-9-8(c). SeeZurich General Accident & LiabilityInsurance Co. v. Lee, 36 Ga. App. 248(1926). Since the liability of the statu-tory employer is secondary, wherethere is no insurance for the immedi-ate employer, the claim should alwaysbe instituted against the general con-tractor and its insurer. TravelersInsurance Co. v. Sanford, 242 Ga. 324,249 S.E.2d 34 (1978).

While there was no general right ofsubrogation against one who causedthe injury to an employee between1972 and 1992, a general contractorhas always had the right to subrogateagainst an immediate employer bybringing suit for indemnificationwhen it has paid the claimant’s work-ers’ compensation benefits. The failureof the statutory employer to requirethe claimant to first present the clamagainst the immediate employer, how-ever, does not prevent the generalcontractor from recovering from theimmediate employer. Travelers Ins. Co.v. Southern Electric., Inc. 209 Ga. App.718, 434 S.E.2d 507 (1993).

LLiimmiittaattiioonn ooff LLiiaabbiilliittyy

The liability of the principal or ageneral contractor only applies incases where the “injury occurred on,in or about the premises on which theprincipal contractor has undertaken toexecute work or which are otherwiseunder his control or management.”O.C.G.A § 34-9-8(d). In AmericanMutual Liability Ins. Co. v. Fuller, 123Ga. App. 585, 181 S.E.2d 876 (1971),the Court of Appeals of Georgiafound that the highways upon whicha truck-driver drove were “premises”sufficient to make the shipper of poul-try a statutory employer. When atruck-driver was injured when he fellthrough the floor of a trailer whileloading the trailer at the plant of theshipper, however, the manufacturer’s

Spring 2006 11

plant was not a sufficient premises forthe shipper to become a statutoryemployer. Gramling v. SunshineBiscuits, Inc. 162 Ga. App. 863, 292S.E.2d 539 (1982). The only significantdifference between the tow cases wasthat in American Mutual v. Fuller, theclaimant was seeking workers’ com-pensation benefits, while in Gramling,the employer was claiming immunity.Although, apparently the holding inAmerican Mutual v. Fuller is indistin-guishable from the holding inGramling, Fuller is often cited for theproposition that a statutory employ-er’s premises could extend wellbeyond the area over which the statu-tory employer actually has control.The continued viability of Fuller, how-ever, has been questioned as a resultof the action of the Supreme Court inGeorgia in Holt v. Traveler’s Ins. Co., 244Ga. 857, 262 S.E.2d 139 (1939).

In the case of Beers Construction Co.v. Doyle, 230 Ga. App. 593, 496 S.E.2d921 (1998), the Court of Appeals ofGeorgia made it clear that “on, in orabout the remises on which the princi-pal contractor has undertaken to exe-cute work” means exactly what itsays. Unless the injury occurs at thepremises where the general contractoris working, the statutory employer isnot liable for benefits to the injuredemployee of a subcontractor.“Imposing workers’ compensation lia-bility on a principal contractor for aninjury that occurred at a location overwhich it had no control, and thuscould not affect the risks, would ren-der the contractor an insurer, whichsurely was not the intent of theWorkers’ Compensation Act.” Id. 496S.E.2d at 922.

B. Definition of Contractor:

The definition of a statutoryemployer has changed dramaticallyover the years. The statute seems tocover any contractor who subcon-tracts part of its work. While the defi-nition contained in the GeorgiaWorkers’ Compensation Act hasremained the same, the courts havechanged the manner in which thestatute has been applied so dramati-cally as to actually change the defini-tion. Under O.C.G.A. § 34-9-8, a prin-

cipal, intermediate, or subcontractorbecomes the statutory employer ofany person injured while in theemploy of any of its subcontractors.By virtue of the Code section, anycontractor is potentially the “statutoryemployer” of every subcontractor’semployees.

1. Statutory Employer

In Wright Associates, Inc. v. Rieder,247 Ga. 496, 277 S.E.2d 41 (1981), theSupreme Court of Georgia made itclear that a statutory employer wasany contractor potentially liable forworkers’ compensation benefits underO.C.G.A. § 34-9-8. The Court held thatany contractor potentially responsiblefor the payment of workers’ compen-sation benefits is entitled to immunityfrom suit by the injured employee.

In Rieder, an employee of a subcon-tractor brought suit against the princi-pal (general) contractor for personalinjuries sustained in an on-site acci-dent. Workers’ compensation benefitswere paid to the employee by theimmediate employer, an independentsubcontractor, and not by the generalcontractor. The general contractorargued that, as a statutory employerpotentially liable for workers’ com-pensation benefits under O.C.G.A. §34-9-8, it should receive the benefits oftort immunity, whether or not it actu-ally paid workers’ compensation ben-efits to the plaintiff. The GeorgiaSupreme Court agreed, holding thatthe employee of an independent sub-contractor could not recover in tortagainst the general contractor eventhought the general contractor hadnot actually paid any workers’ com-pensation benefits.

However, in Long v. Marvin M. BlackCo., 250 Ga. 261, 300 S.E. 2d 150(1983), the Georgia Supreme Courtdeclined to extend tort immunity tothe employees of a statutory employ-er. While an employee of the “sameemployer” is immune (O.C.G.A. § 34-9-11), an employee of a statutoryemployer is not employed by thesame employer as the injured employ-ee of a subcontractor. In the Longcase, an employee of an independentsubcontractor, who received workers’compensation benefits from that sub-

contractor, brought an action againstthe general contractor and its superin-tendent for injuries sustained in a nailgun accident. Reversing the Court ofAppeals, the Georgia Supreme Courtheld that the claim against the generalcontractor was barred by tort immuni-ty under Rieder because the generalcontractor was potentially responsiblefor workers’ compensation benefits.The superintendent of the generalcontractor, an employee of the generalcontractor and not the subcontractor,was not however, immune from tortliability. The Supreme Court foundthat the superintendent and theinjured employee were not employedby the same employer. The Court rec-ognized that Long was not a directemployee of the general contractorbut only the statutory employee of thegeneral contractor and held that beingan “employee” of the statutoryemployer was not the same as “anemployee of the same employer.”Therefore, an employee of a statutoryemployer does not receive tort immu-nity from personal injury suits by anemployee of a subcontractor and maybe a third party tortfeasor underO.C.G.A. § 34-9-11.

2. Early Attempts to Narrow theDefinition of Statutory Employer:

After Long, the Supreme Court con-tinued to limit the immunity of gener-al contractors by narrowing the defi-nition of statutory employer underO.C.G.A. § 34-9-8. In Manning v.Georgia Power Co., 252 Ga. 404, 314S.E. 2d 432 (1984), the Supreme Courtheld that a property owner, althoughit may be a “principal.” is not a “prin-cipal contractor” within the meaningof O.C.G.A. § 34-9-8 and is, thereforenot a “statutory employer” who ispotentially liable for workers’ com-pensation benefits or immune fromtort liability by reason of the exclusiveremedy doctrine. In Manning, apainter who was employed by apainting company, which was undercontract with Georgia Power to paintcertain structures owned by GeorgiaPower, brought an action againstGeorgia Power for injuries he sus-tained while painting. The Courtfound that Georgia Power was not the“statutory employer” of the painter,


since Georgia Power was not acting asa contractor, but was merely theowner of the premises on which theinjury occurred. Georgia Power wasnot potentially liable for workers’compensation benefits; and thereforeit was not immune from tort liability.The Court expressly stated that anowner or entity merely in possessionor control of the premises would notbe subject to workers’ compensationliability as a statutory employerexcept in the isolated situation wherethe party also serves as a contractorfor yet another entity and hires anoth-er contractor to perform the work onthe premises.

The Georgia Court of Appeals alsomade attempts to limit the definitionof statutory employer which resultedin the limitation of the tort immunity.In Western Electric Co., Inc. v. Capes,164 Ga. App. 353, 296 S.E.2d 381(1982), the Court of Appeals predictedthe later decision reached by theSupreme Court of Georgia inManning, supra. In the Capes’ case,Western Electric sought to avoid lia-bility as a landowner from a suit byan employee of a vending machinecompany by claimant it was a statuto-ry employer. The court looked to thecontractual relationship betweenWestern Electric and the injuredemployee’s immediate employer andconcluded that the injured employee’simmediate employer was not a sub-contractor of Western Electric andtherefore Western Electric could notbe a statutory employer. Although theCourt used confusing language byanalyzing the “business enterprise” ofWestern Electric, it ultimately reachedits conclusion that there was noimmunity because the contractualrelationship did not create a “subcon-tractor” status.

3. Business Enterprise Theory

Despite the holding in Manning,and its own early attempts to limit thedefinition of a statutory employer, theGeorgia Court of Appeals actuallyissued a number of opinions whichbroadened the definition of statutoryemployer. For several years, anyowner of a business or premises couldclaim immunity if it acted as its own

“contractor” by actually participatingin the activity as part of a businessenterprise.

In a second case involving WesternElectric, the Court of Appeals expand-ed the definition of statutory employ-er to include an owner of premises byrequiring only that the contract withthe injured employee’s employer bepart of the “business enterprise” ofthe owner. See Godbee v. WesternElectric Co., Inc., 161 Ga. App. 731, 288S.E.2d 881 (1982); reversed by Modlinv. Black & Decker Manufacturing Co.,infra. The Court later recognized thatGodbee was a vast expansion of thedefinition of statutory employerwhich potentially covered anyemployer who hired another to per-form work.

The Court of Appeals attempted toreconcile the difference in the hold-ings in the two Western Electric cases,Godbee and Capes by analyzing thebusiness activity of the purportedstatutory employer. In Modlin v. Black& Decker Manufacturing Co., 170 Ga.App. 477, 317 S.E.2d 255 (1984), theCourt of Appeals held that an ownermerely in possession or control of thepremises was not a statutory employ-er except where the owner also servesas a contractor and hires another con-tractor to perform work. The Courtreasoned that an owner who merelyhired an independent contractor toperform work is not ordinarily in aposition to appreciate and control therisk of injury. Only if an owner alsoacted as a contractor would it thenbecome a statutory employer. InModlin, however, the Court held theowner was not a principal contractorfor the construction of its own plant.Since the owner was not its own con-tractor, it could not be a statutoryemployer and would therefore not beimmune from tort suit.

In Wright v. M.D. Hodges Enterprises,Inc., 183 Ga. App. 632, 359 S.E.2d 700(1987), the Court of Appeals howeveragain moved toward an expansion ofthe definition of a statutory employerto include any business owner active-ly involved in the “enterprise” inwhich the employee was injured. TheCourt reasoned under its “enterprise

theory” that an owner who was actingas its own general contractor and wasactively involved in the enterprisewas entitled to immunity as a statuto-ry employer. This theory effectivelyprovided an owner, who was not alsoa contractor, with immunity status byvirtue of its participation in a com-mon enterprise making it more thanjust merely on owner in possession ofthe premises. The Court, without say-ing so rejected a “bright line” testbased upon whether or not the pur-ported statutory employer was a con-tractor or not. For several years there-after, the courts used the “enterprisetheory” to analyze the granting ofimmunity to owners as statutoryemployers.

4. Yoho v. Ringier of America, Inc.

The Supreme Court of Georgia hasnow given us a clear rule to define astatutory employer who is immunefrom suit under the statutory employ-er provision of the Workers’Compensation Act in the pivotal caseof Yoho v. Ringier of America, Inc. 263Ga. 338 434 S.E.2d 57 (1993). In Yoho,Ringier of America, Inc. was theowner of a large printing plant whichcontracted with Accu-Rite MachineCo to perform repair work on its sol-vent recovery system. One ofRingier’s supervisors assisted withsome of the work by providing toolswith Accu-Rite was lacking and byadvising some of the Accu-Rite work-ers. Yoho, an employee of Accu-Rite,was injured in an explosion whileworking on the solvent recovery sys-tem. Yoho brought suit and Ringiercontended it was a statutory employ-er, asserting that Yoho’s sole remedywas the recovery of workers’ compen-sation benefits. The trial court grantedsummary judgment in favor ofRingier and denied Yoho’s motion forsummary judgment. Applying the“enterprise” theory, the Court ofAppeals affirmed on the basis thatRingier was actually involved in theenterprise in which the plaintiff wasinjured.

The Supreme Court reversed theCourt of Appeals and held that Ringerwas not a statutory employer becauseit did not own any contractual obliga-

Spring 2006 13

tion of performance to another entityand therefore was not a contractorwith regard to the repair of the sol-vent recovery system. The solventrecovery system was a part ofRingier’s own plant and the contrac-tual obligation with regard to therepair was not owed by Ringier toanother, but was owed instead toRingier by Accu-Rite. The Court reit-erated its earlier decision in Manning,Supra, that only a “contractor” who issecondarily liable for workers’ com-pensation benefits is entitled to tortimmunity as a statutory employer.The Court recited the language fromthe earlier appellate cases that anowner who is merely in possession orcontrol of the premises would not besubject to potential workers’ compen-sation benefits as a statutory employ-er. An owner is not a contractor and,therefore, could not be immune fromtort liability.

The Court explained that the lack ofimmunity was not because of the sta-tus of Ringier of America, Inc. as an“owner” but because of its lack of sta-tus as a “contractor.” The contractualobligation of performance is owed to,rather than by, such an owner and itcould not then be considered a “con-tractor.” The Court in Yoho held thatunder Manning, an “owner” does notattain “contractor” status by its activeinvolvement in the enterprise, butonly in the isolated situation where italso serves as a contractor for yetanother entity and hires another con-tractor to perform some or all of thework on its premises. Accordingly, the“enterprise” theory is no longer viableas it is inconsistent with the conceptof “principal contractor” as set forthin O.C.G.A. § 34-9-8.

5. Developments since Yoho

Since Yoho, the courts have made itclear that only a contractor is poten-tially responsible for workers’ com-pensation benefits and therefore astatutory employer. An owner whodoes not owe a duty of performanceto another, even if the owner is active-ly involved in the enterprise in whichthe employee is injured is not entitledto immunity. It is now clear that it isthe obligation of performance owed to

another which creates the status ofcontractor and therefore statutoryemployer. Only a contractor who ispotentially liable for workers’ com-pensation benefits is entitled toimmunity. However, any contractor,whether general, intermediate or sub-contractor, who owes a duty of per-formance is a statutory employer andtherefore immune from suit. See Redd.v. Stanfield, 217 Ga. App. 573, 458S.E.2d 394 (1995), cert. denied;England v. Beers Construction Co., 224Ga. App. 44, 479 S.E.2d 420 (1996). InEngland, the court even held that thecontractor’s actions at an earlier timeunder a different contract were pro-tected since the contractor was theinjured employee’s statutory employerat the time of the injury. A contractortwo levels “up the ladder,” not in con-tractual privity with the worker’simmediate employer, was the work-er’s statutory employer and was enti-tled to statutory immunity. England v.Beers Constr. Co., 224 Ga. App. 44, 479S.E.2d 420 (1996).

In Dye v. Trussway, 211 Ga. App.139, 438 S.E.2d 194 (1993), Dye wasemployed by a temporary employ-ment agency and then assigned toTrussway under a written agreementbetween the employment agency andTrussway. The plaintiff, Dye, wasinjured in the course of working forTrussway. The Court of Appealsreversed the summary judgmentgranted to Trussway, holding that thetrial court improperly found thatTrussway was Dye’s statutoryemployer. The suit was, therefore, notbarred by the workers’ compensationexclusive remedy provision. The courtfound that Trussway was not a statu-tory employer who owed a duty ofperformance to another party and,under Yoho, Trussway was not entitledto tort immunity.

The 1995 Georgia General Assemblylegislatively overruled Dye v. Trusswayby giving immunity to businessesusing the services of a temporary helpcontracting firm or an employee leas-ing company. O.C.G.A. § 34-9-11(c).An employer using such a companyhas direct immunity from suit by atemporary employee and the tempo-rary help contracting firm or employ-

ee leasing company is entitled toimmunity as a statutory employer.

Although the legislature has pro-vided immunity for companies withrespect to temporary and leasedemployees, it did not eliminate thebroader impact of the Yoho case. Forexample, in Guillman v. Georgia PowerCo., 211 Ga. App. 690, 440 S.E.2d 83(1994), the Court of Appeals followedthe holding in Yoho in reversing thegrant of summary judgment toGeorgia Power on the basis that it wasnot Guillman’s statutory employer.Guillman, an employee of an inde-pendent contractor, was injured whilemaking repairs at Georgia Power’sPlant branch. Georgia Power arguedthat it was a statutory employer andtherefore immune from the plaintiff’stort action because it was a contractorowing a duty of performance toanother, its utility customers. TheCourt rejected the argument, holdingthat a mere contract for the sale ofgoods or services does not make theseller a contractor under O.C.G.A. §34-9-8, unless there is an undertakingof substantial services in connectionwith the goods sold. The services pro-vided by Georgia Power were insuffi-cient to qualify Georgia Power as acontractor.

Even though Yoho eliminated mostinstances in which an owner would beentitled to immunity, it did not elimi-nate immunity for owners entirely.Where the owner is also a contractorand enters into a contract with anoth-er contractor under which each con-tractor owes obligations to the other,the owner is entitled to tort immunity.In Finley v. Lehman, 218 Ga. App. 789,463 S.E.2d 709 (1995), the defendantwas both the owner and the developerof a subdivision. As part of the con-tract to purchase the property, theowner agreed to install sewer andwater lines so that houses could beconstructed on the lots in the subdivi-sions by builders. In meeting its obli-gation, the owner/developer hired asubcontractor and Finley was thenkilled while working for the subcon-tractor by a cave-in during the instal-lation of one of the sewer lines.Because the owner had an independ-ent obligation to construct the sewer


lines, the owner was entitled to tortimmunity as the decedent’s statutoryemployer. The obligation of perform-ance which creates the status of con-tractor can even by owed to anotherowner. Holton v. Georgia Power Co. 228Ga. App. 135, 491 S.E.2d 207 (1997).

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Under the Exclusive RemedyDoctrine, the employer of an injuredemployee is immune from suitbecause the injured employee’s sole orexclusive remedy is workers’ compen-sation benefits. O.C.G.A. § 34-9-11.The employer cannot be sued if itcaused the employee’s injury. Kelly v.China One Restaurant, Inc., 161 Ga.App. 600, 289 S.E.2d 28 (1981). Evenwhere the employer’s negligence mayhave combined with a third-party’snegligent to injure the employee, theemployer cannot be sued. An employ-er is immune even if the employeealleges the injury was due to a willfulact such as an assault and battery.

The immunity of a statutoryemployer has also long been a part ofthe workers’ compensation system.See Wright Associates v. Rieder, 247 Ga.496, 277 S.E.2d 41 (1981). It is nowclear that any employer potentiallyliable for the payment of workers’compensation benefits is immunefrom suit. The Workers’Compensation Act also makes it clearthat a co-employee of the sameemployer is likewise immune fromsuit. O.C.G.A. § 34-9-11; see e.g.Williams v. Byrd, 242 Ga. 80, 247 S.E.2d874 (1978). Since a claim by a spouseis derivative, a claim for loss of con-sortium by the spouse of an injuredemployee is barred as well. Gulf StatesCeramic v. Fenster, 228 Ga. 400, 185 S.E.2d 801 (1971). An insurance carrier ora servicing agent for a self-insuredemployer is entitled to the sameimmunity as an employer. Fred S.James & Co. of Georgia v. King, 160 Ga.App. 697, 288 S.E.2d 52 (1981). Thegeneral principles barring a claimagainst the employer, a statutoryemployer and a co-employee of thesame employer are now widelyaccepted and rarely challenged.

In Rothrock v. Jeter, 212 Ga. App. 85,441 S.E.2d 88 (1994), the Court of

Appeals relied upon many of the oldcases and Yoho in part to reach theholding that the plaintiff and thedefendant were not employees of thesame employer as to entitle the defen-dant to immunity under the Workers’Compensation exclusive remedy pro-vision. Rothrock operated his truck asan independent contractor for C&NEvans Trucking Company. Jeter, anemployee of C&N was injured onC&N’s premises while assistingRothrock with his truck. Jeter receivedworkers’ compensation benefits fromC&N, his direct employer, and there-after filed suit against Rothrock forhis injuries. Rothrock contended thatas a subcontractor, C&N became hisstatutory employer. Jeter was a directemployee of the statutory employerand he was therefore entitled to theimmunity of C&N.

In affirming the denial of Rothrock’smotion for summary judgment, theCourt of Appeals held that althoughC&N may have been a statutoryemployer or Rothrock for determininghis own right to workers’ compensa-tion benefits against C&N, he was stillan independent contractor and not aco-employee of Jeter. Rothrock andJeter were not employees of the sameemployer within the meaning of theexclusive remedy provision becauseone (Jeter) was an employee but theother (Rothrock) was an independentcontractor. Immunity afforded to “anemployee of the same employer” ascontained in O.C.G.A. § 34-9-11(a)does not extend to subcontractorswho are not statutory employerswhen direct employees assert claimsagainst the independent contractor.

Also, if an injured worker looses hisor her claim for workers’ compensa-tion benefits for reasons unrelated tohis or her employment status, theycan not sue a statutory employer intort. In Maguire v. Dominion Dev. Corp.,241 Ga. App. 715, 527 S.E.2d 575(1999) the general contractor success-fully defeated a claim for workers’compensation benefits based upon theworker’s failure to follow proper pro-cedures. The Court of Appeals heldthat the employee’s tort claim wasbarred by the exclusive remedy provi-sion of the Act even though he did not

receive benefits.

1. Immunity of Non-CConstructionProfessionals

A number of professionals haveattempted to rely upon the immunityas a co-employee to bar claims againstthem for professional negligence. InDowney v. Bexley, 253 Ga. 125, 317S.E.2d 523 (1984), employees, whileproceeding in workers’ compensation,sued the company physician allegingfraud, deceit and medical malpracticecontending that Dr. Downey knew oftheir deteriorating health condition,did nothing about their condition, andintentionally concealed the informa-tion from them. The Superior Courtruled that Dr. Downey was immunefrom suit as a co-employee, but theSupreme Court reversed holding thata professional co-employee may beheld liable because he owes a uniqueand professional duty despite his sta-tus as a co-employee. This ruling wasaffirmed in Davis v. Stover, 258 Ga.156, 366 S.E.2d 670 (1988) when theSupreme Court of Georgia held that itwas not the allegation of fraud ordeceit that eliminated the co-employ-ee physician’s immunity but the pro-fessional duty owed bcause of the co-employee’s status as a physician.

Similarly a rehabilitation nurseowes a separate and independent pro-fessional duty to her client. In Drury v.VPS Case Management Services, Inc. 200Ga. App. 540, 408 S.E.2d 809 (1991), asuit was allowed to proceed against arehabilitation supplier after an injuredemployee contended that the supplierhad negligently provided vocationalrehabilitation services. The Court ofAppeals held that a rehabilitationsupplier owed a professional dutyand that the duty arose subsequent tothe injury. The nurse, therefore wasnot entitled to immunity.

A state patrol captain, however, isnot a professional who owes a unique,fiduciary or professional duty to a fel-low state patrol officer when driving acar. In Clark v. Williams, 206 Ga. App.329, 425 S.E.2d 311 (1992), a statepatrol officer was injured in an acci-dent in which his captain was drivingand was killed. The estate of the cap-tain was granted immunity since the

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captain was a co-employee and owedno professional duty to the injuredofficer.

In order to make a party to thecontract for the sale of goods a “con-tractor,” the contract to sell must beaccompanied by an undertaking byeither party to render substantialservices in connection with the goodssold. The fact that an injured employ-ee’s employer fabricated the parts soldon the construction site does not, inand of itself, make the employer asubcontractor of the contractor. GrayBldg. Sys. v. Trine, 260 Ga. 252, 391S.E.2d 764 (1990).

2. Statutory Employer Immunity forConstruction and Safety Managers

The employee of another subcon-tractor or even the employee of thegeneral contractor is not automaticallyentitled to immunity because such aperson is often not an employee of thesame employer. When an employee ofa subcontractor is injured, however, inmany cases, the construction man-agers and safety personnel will beentitled to immunity anyway. In lightof the previous cases, there was somefear by construction managers andsafety managers that while perform-ing their duties, they could subjectthemselves to suit even thought theywere not actively doing anythingwrong and even though their employ-er would be immune from suit.

Cases such as Paz v. Marvin M. BlackCo., 200 Ga. App. 607, 408 S.E.2d 807(1991), confirmed many of the fears ofconstruction and safety managers. InPaz, a subcontractor’s employee wasinjured in a fall from a scaffold. Hethen sued the general contractor aswell as the general contractor’s fore-man who was allegedly supervisingor directing the use of a bulldozerwhich was operating around the scaf-fold at the time it fell. The generalcontractor also was cited for OSHAviolations in connection with thebuilding of the scaffold. Relying onLong v. Marvin M. Black Co., 250 Ga.621, 300 S.E.2d 150 (1991), the Courtof Appeals in Paz refused to grantimmunity to the supervisor of thegeneral contractor based solely on thefact that the supervisor of the general

contractor was not an employee of thesame employer as the injured employ-ee.

The Supreme Court of Georgia inLong, however did not address theissue of whether or not the negligencewas active or passive or whether anon-delegable duty was involved asrequested by the defense. The Longcase involved active negligence (a nailgun accident) and there was no issueof supervision since the supervisoractually shot the nail gun. The Courtof Appeals in Paz, did not distinguishbetween the negligence of discharginga nail gun into another employee(Long) and the allegation of a failureto inspect or properly supervise theerection of scaffolding. In Paz,although the foreman was activelysupervising the work, he was not theperson performing the work andtherefore it was viewed as a passivenegligence case by construction pro-fessionals.

The fear of construction and safetymanagers was compounded by theinitial ruling of the Court of Appealsin Ruiz v. Pardue, 204 Ga. App. 566,420 S.E.2d 1 (1992) and Avelor v.Scaffolding & Shoring Systems, Inc., 206Ga. App. 682, 426 S.E.2d 673 (1992). Inthose cases, employees of a subcon-tractor were injured when they fell offof the same scaffolding which causedthe injury to Mr. Paz and which wasthe subject of the suit in Paz v. MarvinM. Black & Co., supra. Mr. Ruiz andMr. Avelor sued the general contrac-tor’s safety manager for failing to pro-vide a safe workplace. While theSuperior Court originally grantedimmunity to the safety manager, find-ing the safety manager was the “alter-ego” of the general contractor, theCourt of Appeals, relying on the earli-er cases, held that the safety managerwas not immune since he was not aco-employee of the same employer asthe injured employees.

The Supreme Court of Georgiareversed the Court of Appeals holdingthat because the general contractor’ssafety manager was acting as thealter-ego of the general contractor inconducting the safety program (whichincluded any failure to inspect the

scaffolding) he was entitled to immu-nity. The claimants contended that thesafety manager had been negligent infailing to inspect the scaffolding andthat it had been erected improperly.The Supreme Court held that the safe-ty managers’ duties were non-dele-gable and a passive duty of generalsupervision or providing a safe work-place. Therefore, the safety managerwas entitled to the general contrac-tor’s tort immunity. Pardue v. Ruiz, 263Ga. 146, 429 S.E.2d 912 (1993). Theonly way the general contractor couldperform its duty was through its man-agers. To allow lawsuits against offi-cers, managers or supervisors who areperforming general passive non-dele-gable duties of the statutory employerwould defeat the very purpose of theWorkers’ Compensation Act byimposing double liability upon thestatutory employer who would beobliged to indemnify its managers.

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While the statute imposing liabilityfor workers’ compensation benefitsupon intermediate or general contrac-tors has remained the same since theGeorgia Workers’ Compensation Actpassed in 1920, the application ofwhat is now O.C.G.A. § 34-9-8 hasnever been clear. The courts haveinterpreted the meaning of contractor,subcontractor and even independentcontractor in various ways whichhave been confusing to many lawyersand judges. Since the decision in Yohov. Ringier of America, Inc. it is nowclear that only a contractor is obligat-ed to pay workers’ compensation ben-efits to the employee of a subcontrac-tor and that one becomes a contractoronly through an obligation of per-formance created by contract. Once abusiness enterprise has the potentialobligation to provide workers’ com-pensation benefits, it is thereafterimmune from tort suit. The potentialobligation to pay workers’ compensa-tion provides the corresponding tortimmunity.


Since the last newsletter the Court of Appeals hasdecided a number of cases in the workers’ compen-sation area, as follows:

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The claimant injured his back at work while lifting apatient on July 16, 2003. He did not return to work untilAug. 4, receiving TTD benefits for two weeks, when histreating physician released him to return. He stoppedworking again on Aug. 26 due to back pain. According tothe claimant, his condition gradually worsened with hisregular work activities until he could simply no longerwork. No one disputed that the claimant was entitled toworkers’ compensation income benefits. The employerchanged workers’ compensation coverage effective Aug. 1,2003, so the only issue was whether the disability resultedfrom a Aug. 26 change in condition from the July 16injury or from a new Aug. 26, 2003 accident.

The ALJ found that the claimant had not sustained anew accident as of Aug. 26 and that his disability was dueto the July 16 injury. The Appellate Division affirmed. TheSuperior Court reversed, finding that the evidence showeda new accident date of Aug. 26, 2003. The first insurerargued on appeal that there was medical evidence torefute the claimant’s testimony regarding his gradualworsening without a new injury. Because there was “anyevidence” (the claimant’s testimony) to support the changein condition finding, however, it was error for the SuperiorCourt to reverse the Board’s finding.

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The claimant fell several feet from a ladder at work, sus-taining multiple fractures and other injuries. Two daysafter his discharge from the hospital, he had a heart attack.The employer acknowledged the accident’s compensabili-ty, but controverted payment of certain treatment associat-ed with the heart attack, contending that it arose from apre-existing condition, was personal in nature, and did notarise out of or in the course of employment. The claimantrequested a hearing, seeking the specific relief of paymentof certain heart attack-related expenses. The parties stipu-lated at hearing that the employer would be liable forthose expenses if the ALJ found the heart attack compen-sable. A cardiologist offered several points in favor of cau-sation: the claimant’s discontinued use of blood thinnerson the recommendation of those doctors treating him forhis injuries made his arteries more susceptible to clotting;the trauma from the fall itself made him more susceptible

to chemical changes which would have failed to preventclotting; and pain medication taken for the fall’s injuriesmay have masked some of his chest pain. The cardiologisttestified that the heart attack was a result of a combinationof pre-existing heart disease, physical stress from the fall,fractured bones, pain, reduction of blood-thinning medica-tion, and the chemical changes brought about by the trau-ma. The ALJ was persuaded by the cardiologist’s testimo-ny and found that the fall aggravated the pre-existingheart condition, ordering the employer to pay the medicalexpenses at issue. The Appellate Division affirmed.

On the employer’s appeal to the Superior Court of BibbCounty, the award was affirmed, but the superior courtadded that the employer was “not required to pay anyfuture medical expenses related to Claimant’s heart condi-tion.” The Court of Appeals affirmed that portion of thesuperior court’s judgment relating to payment of the med-ical expenses that were at issue before the Board, butreversed that portion relating to future medical expenses,directing the superior court to amend its judgment toremove that language. The Court held that future medicalexpenses related to any ongoing heart condition that theclaimant might have were not an issue before the Board,and including such future expenses was beyond the supe-rior court’s jurisdiction.

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The claimant injured his back at work in 1996, resultingin surgical fusion. In 2001, the Board designated hisinjuries catastrophic. He began receiving temporary totaldisability (TTD) benefits. In 2003, the employer sought anaward reducing the claimant’s benefits. It alleged that hehad begun doing maintenance work at an apartment com-plex and that there were jobs available within his changedlifting restrictions. The ALJ rejected the employer’s argu-ments, finding that, although the claimant “helped out”around his friend’s apartment complex, his activities didnot constitute a return to work. The ALJ further foundthat, although a labor market survey demonstrated severaljobs that were suitable for the employee, there was “noevidence that any of these jobs are actually available to theemployee or that the employee was informed of the jobs.”The superior court affirmed.

The employer urged the seemingly contrary resultsreached in WAGA-TV, Inc. v. Yang, 256 Ga.App. 224, 568S.E. 2d 58 (2002), and ABB Risk Management, etc. v. Lord,(254 Ga.App. 88, 561 S.E.2d 225 (2002). In both of thosecases, the Court of Appeals held that the superior courts

Recent Appellate DecisionsBy Neil C. ThomA. &B. Bishop & Associates LLC

Spring 2006 17

erred in reversing the Board’s findingsin the employers’ favors that theclaimants had experienced changes incondition for the better. The Court ofAppeals in the instant Rooker case,however, pointed out that its reviewsof the Yang and Lord cases, as of thepending case, were governed by the“any evidence” standard, all with thesame legal result. The “contrary”results were at the Board level and,when supported by any evidence,could not be disturbed on appeal.Each of them “could have gone eitherway”, so to speak, but having goneone way or the other with the supportof any evidence, they must stay thatway.

The Court, citing Sadie G. MaysMem. Nursing Home v. Freeman, 163Ga.App. 557, 295 S.E. 2d 340 (1982),included a useful reminder of how anemployer might show a change incondition for the better: by showing(1) a physical change for the better; (2)an ability to return to work as a resultof that change; and (3) the availabilityof work that would terminate ordecrease the loss of income resultingfrom the work-related disability. Onecan see that the evidence in Rookermight have been enough to persuadethe Board that a change in conditionfor the better had occurred, but as itwas not, the decision stood.

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In a wrongful death action broughtby the decedent’s (Glover) estateagainst Ware, the defendant movedfor summary judgment, allegingGlover was Ware’s employee, andtherefore the exclusive remedy provi-sion applied. The state court grantedsummary judgment, but the Court ofAppeals reversed, holding that thereexisted a genuine issue of materialfact as to whether Glover was anemployee of Ware’s landscape busi-ness.

Glover was disabled and lived onWare’s property. Ware acted as a defacto guardian, receiving Glover’sSocial Security disability benefits andtaking care of Glover’s needs, includ-

ing food, shelter, and clothing. Heheld a position of authority overGlover, acting as a “father figure”.Glover rode with Ware to a job oneday, and when one of the crew didnot show up, Ware asked him if hewould help out. Compensation wasnot discussed. While Glover wasworking with the crew, he lost his bal-ance, fell off the back of the truck, andwas run over by the mulchingmachine, resulting in fatal injuries.

Thereafter, an investigator acting onWare’s workers’ compensation insurermet with Ware, and Ware signed astatement asserting, inter alia, thatGlover was not an employee. Glover’sfamily filed a workers’ compensationclaim, which was denied by the work-ers’ compensation insurer, then filedthis wrongful death action.

Based on Ware’s statement in con-nection with the workers’ compensa-tion claim and the fact that the paral-lels between the authority of anemployer and the authority of a“father figure” rendered the existenceof an employer-employee relationshipinconclusive, the Court reversed thesummary judgment.

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The deceased employee was a con-struction superintendent at a job site inJackson, Ga. The employer providedhousing in Fayetteville so he could livenearby and a company-owned truckfor work and personal use. The

employee was killed in an accident ona Sunday after being out of work for aweek recovering from knee surgery. Hesustained fatal injuries in an accidentwhile he was on his way back from atrip to Alamo, Ga., to take personal fur-niture to a storage shed on property heowned. The ALJ found that he wasreturning either to his company-pro-vided housing or to the job site.

Citing Boyd Bros. Transportation Co.v. Fonville, 237 Ga.App. 721, 516 S.E.2d573 (1999), and Wilson v. Ga. PowerCo., 128 Ga.App. 352, 196 S.E.2d 693(1973), the Board found that theemployee was in a state of continuousemployment, because he was requiredto live and work in an area geographi-cally limited by the necessity of beingavailable for work on the job site. Theemployer argued that the accident didnot arise out of and in the course ofemployment, because the employeewas on a purely personal missionwhen he was injured. A continuousemployee who deviates from hisemployment by taking a trip for per-sonal reasons removes himself fromemployment during that deviation.Intl. Business Machines v. Bonzardt, 156Ga.App. 794, 275 S.E.2d 376 (1980)Once the personal mission ends, acci-dents that occur on the trip arise outof and in the course of employment.The Board concluded that, since theaccident occurred while the employeewas on his way back from (and not to)Alamo for this personal errand, anydeviation from the continuousemployment had ended. The Board


awarded benefits to the motherand guardian of the deceasedemployee’s minor child, andthe superior court affirmed.

The Court of Appealsaffirmed, as well, with someclarification. It held that “turn-ing around” from the personaldeviation was not, by itself, suf-ficient to terminate the devia-tion and restore employment.Instead, citing Lewis v. ChathamCounty &c. Commission, 217Ga.App. 534, 458 S.E.2d 173(1995), the Court held that if adeviation is significantly great,merely turning around toreturn is not enough, but thedeviation ends only when theemployee has returned to thegeographic area where hiswork requires him to be. Thescope of this geographic area isnecessarily a factual issue. TheCourt held that the Boardimplicitly found that at the timeof the car accident the employ-ee had returned to the designat-ed geographic area, and the personalmission was complete. This implicitfinding was supported by some evi-dence: the accident took place in acounty adjacent to that where the jobsite was located.

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The claimant was president, soleshareholder, and one of only two full-time employees (the other was hiswife) of the employer. Following awork-related accident on July 28,1998, he was awarded temporary totaldisability (TTD) benefits. The employ-er’s workers’ compensation insurer,Travelers, suspended those benefitson April 24, 2002, but did not file anotice of suspension until Dec. 10,2003. At that time, Travelers requesteda hearing to recover TTD benefits ithad overpaid, alleging that theemployer had returned to work lessthan a year after the accident.Travelers also sought attorney fees,litigation expenses, civil penalties, anda referral for criminal prosecution.

The ALJ found that the claimantwas never totally economically dis-abled and rejected a statute of limita-tion defense raised in the claimant’sbrief, since it had not been raised atthe hearing. Specifically, the claimant’sbrief argued that O.C.G.A. §§ 34-9-104(b) and 34-9-245 barred claims foroverpayments asserted more than twoyears after the overpayment wasmade. The ALJ ordered full reim-bursement of benefits, assessed theTravelers’ attorney fees, litigationexpenses, and civil penalties againstthe claimant, and referred the matterto the Board’s Enforcement Divisionfor possible criminal prosecution. TheAppellate Division upheld the ruling,but for the award of litigation expens-es. Agreeing that the claimant hadwaived any statute of limitationdefense, the Appellate Division addedthat O.C.G.A. § 34-9-245 was inappli-cable, since it was enacted after thedate of injury and could not beapplied retroactively.

The superior court reversed, hold-ing that O.C.G.A. § 34-9-245 was astatute of repose, creating an absolutebar against claims for reimbursement

made more than two yearsafter the overpayment wasmade and not an affirmativedefense that could be waived.The superior court thereforereversed that portion of theBoard’s award that orderedreimbursement of any benefitspaid before Dec. 10, 2001, twoyears prior to the date the hear-ing was requested. The superi-or court also reversed theaward of attorney fees, theassessment of civil penalties,and the referral to theEnforcement Division.Travelers’ application for dis-cretionary appeal was acceptedby the Court of Appeals.

The Court of Appeals heldthat the superior court’s exami-nation (and partial reversal) ofthe reimbursement order wasbased on a legal interpretationof O.C.G.A. § 34-9-245 and, assuch, was not subject to the“any evidence” rule, but wasproperly a de novo review.

Trent Tube v. Hurston, 261 Ga.App. 525,583 S.E.2d 198 (2003) On the otherhand, the superior court’s review ofthose Board findings that warrantedthe award of attorney fees, the assess-ment of civil penalties, and the refer-ral to the Enforcement Division wassubject to the “any evidence” stan-dard.

Travelers argued that the superiorcourt erred in holding that O.C.G.A. §34-9-245 was not a statute of limita-tion and, therefore, subject to waiverby the claimant for not raising it at thehearing. It argued, alternatively, that itwas inapplicable to the claimant’scase, since it was enacted after theaccident. The Court of Appeals reject-ed both arguments. Looking to thespecific language of the statute (“Noclaim for reimbursement shall beallowed where the application forreimbursement is filed more than twoyears after the date such overpaymentwas made”), the Court held that, likea statute of repose, it contemplates anabsolute barrier to the right to seekreimbursement after two years and isnot, as a statute of limitation wouldhave been, a procedural deadline

Spring 2006 19

imposing a time limit on when theaccrued right could have beenbrought. Having found the statute tobe one of repose, it necessarily fol-lowed that the right to claim reim-bursement for benefits paid morethan two years before the filing of theaction no longer existed. Thus, inte-gral to the definition to the right ofreimbursement and not merely astatute of limitation, application of thestatute could not be waived by theclaimant.

Rejecting Travelers’ argument thatthe statute could not be appliedretroactively, the Court of Appealspointed out that O.C.G.A. § 34-9-245was enacted one year after theclaimant began receiving TTD bene-fits. Citing Hanflik v. Ratchford, 848F.Supp. 1539 (N.D.Ga. 1994), theCourt acknowledged that statutes ofrepose can be applied retroactively“to cut short previously accrued caus-es of action, so long as plaintiffs hadan adequate opportunity to bringtheir lawsuit prior to losing their pre-viously vested rights.” Travelers,therefore, had at least a year to seekreimbursement of those initial pay-ments to the claimant, so retroactiveapplication of the statute was notimproper.

Finally, the Court of Appeals agreedwith Travelers that the superior court’sreversal of the attorney fees, civilpenalties, and Enforcement Divisionportions of the Board’s award wasimproper. Since the Board’s findingsin support of those portions of theaward were supported by any evi-dence, they should not have been dis-turbed on appeal.

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The claimant injured his foot in anaccident arising out of and in thecourse of his employment. After hewas released by his doctor to workwith restrictions, the employer offeredhim a job as a delivery truck driver,which job was within the restrictions.When he appeared for the job, howev-er, he could not produce a valid dri-

ver’s license and could not obtain one,because he had entered the countryillegally. There was no evidence thathis inability to drive was attributableto any reason other than his inabilityto obtain a license as a result of beingan illegal alien. He testified that hedid not know how to drive very well,but admitted that he drove in Mexico.He testified further that he wasunable to read or write, further pre-venting him from obtaining a driver’slicense. Two days after presenting forwork without the required driver’slicense, his physician certified himunable to work for three weeks, butanother medical opinion approxi-mately two months later concludedthat he remained capable of light dutywork.

The ALJ found that there had beenno physical change for the better as ofthe date of the proposed return towork. He further found that theoffered job was not suitable becausehe did not possess a driver’s license,at least partly because he could notread or write and would be unable topass the required test. The AppellateDivision affirmed, but the superiorcourt reversed. The case presentedchallenges to the Board’s applicationsof law to undisputed facts, so theBoard’s decision was subject to a denovo standard of review. Trent Tube v.Hurston, 261 Ga.App. 525, 583 S.E.2d198 (2003)

Citing the Georgia Supreme Courtcase of City of Adel v. Wise, 261 Ga. 53,401 S.E.2d 522 (1991), the Court ofAppeals explained the test presentedby O.C.G.A. § 34-9-240, dealing withrefusal of suitable work. The Boardmust first determine whether theoffered job is suitable to the employ-ee’s capacity; if it finds the job suit-able, then no compensation is allowedfor the duration of the refusal, unlessin the opinion of the Board the refusalwas justified. Suitability deals onlywith the employee’s physical capacityto perform the job, so the Board erredin determining that it was not suit-able. The fact that the doctor took himout of work two days later was notrelevant to the job’s suitability at thetime, since the question of presentsuitability could not be affected by

later events.

Addressing the question of whetherthe refusal was justified, the Court ofAppeals acknowledged that thestatute’s language gives the Board dis-cretion. The Supreme Court, however,has expressly limited that discretionin Wise, supra. To be justified, therefusal “must relate, in some manner,to his physical capacity or his abilityto perform the job.” Id. It cannot relatesolely to personal choices unrelated tothe work, such as the desire to work aparticular shift.

The finding that the claimant’sinability to obtain a driver’s licensedue to his inability to read or writewas an error of law, since state lawprovides for tests to be administeredorally to illiterate applicants. TheCourt compared this case with itsrecent case of Earth First Grading v.Gutierrez, supra. In Earth First, theemployer argued that the claimant’sundocumented status rendered himineligible to receive TTD benefits,since he could not meaningfullyaccept any employment, making thecase analogous to someone who isincarcerated. The Court of Appealsrejected that argument, since thatclaimant’s illegal status had not ren-dered him incapable of meaningfullyaccepting employment in the past (hewas working, after all, when he wasinjured). In Martines, the claimant’sillegal immigration status was thecause of his inability to accept a suit-able job. The Court also rejected theclaimant’s argument that the doctor’s“no-work” opinion two days after herevealed the reasons for his inabilityto perform the job showed that the jobwas not suitable. It is the time that thelight duty job is offered that is rele-vant to the test of whether it is suit-able, and later events do not changethe offer’s suitability.

State Bar of GeorgiaWorkers’ Compensation Law SectionAnn Bishop, Editor104 Marietta Street, NWAtlanta, GA 30303

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ATLANTA, GA

PERMIT NO. 1447

non-worker’s compensation groups.The only significant differencebetween the groups was that theworker’s compensation group had ahigher rate of changing jobs becauseof persistent symptoms.

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Tennis elbow is a challenging prob-lem for both the patient and their careproviders. Little evidence exists toclearly define the best treatment pro-tocol. Successful symptom relief canbe expected in a majority of patients,but progress can be slow and surgerymay be necessary after all non-surgi-cal options are exhausted. Knowledgeof the anatomy, pathophysiology, andcauses of the problem can help toalleviate the frustration often felt bythe patient, case manager, attorney,and physician.

Tennis ElbowContinued from page 4