CASE LAW UPDATE

The end of 2012 brought with it important decisions in Georgia appellate courts affecting key issues in workers’ compensation claims.  Below is a brief summary of three of the most recent decisions that addressed workers’ compensation issues.

Arby’s Restaurant Group, Inc. v. McRae (Decided November 5, 2012):
Many people are familiar with the Court of Appeals’ 2011 decision in this claim, which led many to fear that the Court of Appeals’ decision would work to prohibit the long-established practice of employer holding ex parte communications with treating physicians.  Fortunately, the Supreme Court of Georgia reversed the Court of Appeals, finding that (1) O.C.G.A. §34-9-207(a) does not prohibit ex parte communications between a treating physician and counsel for an employer; and (2) “information” as used in O.C.G.A. §34-9-207(a) includes oral communications between a treating physician and employer.  The Supreme Court’s ruling confirms that insurers and insureds can continue to utilize O.C.G.A. §34-9-207 and conduct ex parte communications with treating physicians, which has been, and continues to be, an expediting force in resolving workers’ compensation claims.

Evergreen Packaging, Inc. v. Prather (Decided November 13, 2012):
In Prather, the claimant had worked for Evergreen for several years, and in 2002 sustained an on-the-job injury to his back.  Several years after his injury took place, he began working a new job for the employer, which he maintained was vastly different from his previous position.  The claimant also maintained that after returning to work, his back got progressively worse and eventually a treating physician took him out of work.  The Court of Appeals held that rather than suffering a change in condition related to his 2006 accident, the claimant had instead suffered a new accident altogether.  In arriving at this decision, the Court of Appeals noted that when there is no new actual new accident, ordinarily the distinguishing feature that will characterize the disability as either a ‘change of condition’ or a ‘new accident’ is the intervention of new circumstances.  In Prather, the Court of Appeals noted the presence of ‘new circumstances,’ including the facts that the claimant performed different but still physically demanding work after returning to work from his prior disability and that his condition worsened when the scope of his work changed.  Accordingly, the claimant was found to have suffered a new accident.

The Medical Center, Inc. v. Hernandez (Decided November 21, 2012):
In Hernandez, two claimants were involved in a motor vehicle accident while on their way to work.  The Court of Appeals affirmed the lower court’s ruling that this accident did not arise out of or in the course of the claimants’ employment.  The Court of Appeals noted that the claimants were only paid for the hours they actually worked on the job site, were not paid for travel time and at the time of the accident, the claimants were not yet engaged in their employment.  The claimants alternatively argued that their injuries were compensable under the “continuous employment” doctrine, which is frequently used by “traveling salesman” types of employees who allege work-related injuries while traveling.  The Court did not agree with the claimants, finding that they had not yet arrived at their job site and were not yet performing the duties of their employment when the accident occurred.  Accordingly, the accident was not compensable.