View this article online: https://www.insurancejournal.com/news/southeast/2023/08/14/735154.htm
After three major Georgia appeals court decisions have gone against employers in the last five years, some insurance defense attorneys are concerned that the state’s workers’ compensation laws have become costly to insurers and businesses, despite years of rate reductions and a pro-business atmosphere in this deep-red part of the country.
“It’s a trend that we’ve noticed at all levels of the courts,” said Samantha Lewis, of Atlanta, a partner in the Parker Poe law firm, who represents school districts in workers’ compensation claims.
The trend began in 2018 and solidified during the COVID-19 pandemic, when courts, lawmakers and the public seemed to express new sympathy for some types of workers, said Lewis and her colleague, Elizabeth Phrampus.
Claimants’ lawyers were surprised by the assertions and argued that judges have simply interpreted the law as it was written.
“I really don’t see a trend leaning toward injured workers,” said claimants’ attorney Todd Maziar, with the Georgia Legal Foundation, which filed an amicus brief in a recent case decided by the appellate court. “These are cases with facts such that the Court of Appeals and the Supreme Court simply ruled in favor of the injured worker.”
The courts – with very few dissenting opinions from judges – correctly interpreted the intent of the comp laws and were not legislating from the bench, he added.
While insurance and employer groups have long argued that some states, including California, New York and Illinois, have crafted laws over the decades that could be considered too “worker-friendly” or burdensome to employers, Georgia, with a two-thirds-majority Republican legislature, is not one of those.
“I think you’d be hard-pressed to say that Georgia’s workers’ comp laws are too worker-friendly,” said Tom Holder, an Atlanta claimants’ lawyer and former president of WILG, the Workers’ Injury Law and Advocacy Group.
The court decisions that Lewis and Phrampus are concerned about began with Cartersville City Schools vs. Johnson in 2018. The Georgia Court of Appeals essentially limited employers’ use of the “idiopathic disease” defense, which had allowed businesses to claim that some injuries were of unknown origin, not necessarily related to the workplace.
In that case, a school teacher had fallen in the classroom and injured her knee, then required surgery. She filed a claim, contending that the injury arose from her employment duties, namely, having to wind her way through tight rows of desks all day. The school district argued that her knee condition was the result of everyday-type activities outside the classroom.
The Court of Appeals overturned previous case law and upheld a lower court, which had struck down the state Workers’ Compensation Board’s denial of the teacher’s claim.
“Evidence showed claimant was actively engaged in the movements and behaviors required of her as a classroom teacher when she fell and was injured as a result of one or more of those movements,” the appeals court judges wrote.
“That case is what started this roller coaster,” Lewis said.
Maziar countered that the idiopathic defense had, over many years, become confused by the courts and had been abused by insurers.
Then came the Frett decision in 2020, Lewis and Phrampus said. In Frett vs. State Farm, the Georgia Supreme Court overturned the Court of Appeals and longstanding case law that had held that injuries that occur during an employee’s scheduled break are not usually compensable.
The high court found that Frett, a claims adjuster for State Farm, slipped on a wet floor at work, causing her injury, while she was on break. The 1935 court decision that had allowed the “scheduled break” defense made no sense and was “untethered from the analytical framework consistently employed by this court in workers’ compensation cases,” Justice Keith Blackwell wrote in the Frett opinion.
In the most recent case cited by the defense lawyers, Lilienthal vs. JLK Inc., the state Court of Appeals in May of this year found that a list of treating physicians was not prominently displayed when it was kept in a locked storage room.
Preschool teacher Linda Lilienthal tripped over a child’s blanket in the classroom, injuring her left shoulder and both knees, the court explained. The school gave her a list of doctors, but went ahead and made an appointment with a nearby clinic. The workers’ compensation act allows the insurer/employer to pick the six doctors, but the list must be prominetly displayed at the workplace.
An administrative law judge decided that the room where the list was displayed was “accessible,” and upheld the denial of Lilienthal’s claim. But the appeals court judges found that the ALJ had misconstrued the law.
“We conclude that the ALJ erred by conflating the concept of accessibility with prominence. The fact that a panel is located in a technically ‘accessible’ location does not mean that it is posted in a ‘prominent,’ conspicuous, or easily seen location,” the appellate judges wrote. “Indeed, under the facts of this case, the panel of physicians was not easily seen by most employees working upon the premises.”
Lilienthal’s attorneys argued that since the list was not prominently displayed, the law essentially allows an injured worker to choose her own physician. An ALJ, though, denied the teacher’s request to treat with her chosen doctor, who had recommended knee surgery.
In the appeal, Maziar wrote in his amicus brief that the only notice to employees, as established by a 1994 revision to the comp law, is the posted panel of physicians, not a list handed out after an injury.
“Panels of physicians should be placed in areas on a business premises where they are clearly visible,” he wrote. “They should not be hung in the darkness of seldom-used, locked hallway rooms.”
The appeals court found that the ALJ and Board of Workers’ Compensation were wrong, and remanded the case to the board for a do-over. JLK and Accident Fund Insurance Co. are expected to appeal to the state Supreme Court.
Lewis and Phrampus said the Lilienthal ruling went too far and raises too many questions about what may be considered a prominent posting. By splitting hairs, the decision could now open the door for more workers to pick their own doctors, potentially raising medical costs for work injuries.
Taken together, the three court decisions mark a slippery slope for employers and carriers, the defense lawyers said.
Maziar and Holder said no trend exists and Georgia jurists are not suddenly uniting with workers.
The vast majority of judges on the highest courts have been appointed by Republican governors, if party affiliation can be used as a broad-brush indicator. Eight of the 13 judges on the Court of Appeals were named by Republicans, a party that has historically aligned with employers more often than with worker rights. Two Republican-appointed judges concurred in the Lilienthal decision.
One appeals court judge, Christopher McFadden, lists his membership in the Federalist Society, an organization that advocates for a textualist interpretation of the U.S. Constitution. Some critics have said the society is seen as too conservative and too supportive of business interests. McFadden concurred in the 2018 Cartersville vs. Johnson opinion. And eight of the nine Supreme Court justices were named by a Republican governor.
Some Republican-dominated state legislatures in recent years have moved to correct laws and court decisions that have been seen as too worker-friendly or too costly for employers. In Kentucky, lawmakers in 2018 ended lifetime medical benefits for some long-term injuries. In Tennessee, some claimants’ lawyers have charged that statutes have drastically reduced attorney fees for workers, driving some lawyers out of the comp practice and making it difficult for injured workers to find representation.
And in West Virginia, lawmakers revamped the court system in 2020, eliminating some ALJs and creating a new appeals court. A claimants’ lawyer said recently that snce the new system was set up, the vast majority of decisions have gone in favor of businesses and against workers.
But in Georgia, both sides of the debate said that they’ve heard no rumblings that state lawmakers may now try to restore some of the defenses chipped away by the Lilienthal, Frett and Cartersville City Schools opinions.
“I haven’t heard any talk about that,” Lewis said.
Georgia officials, like their counterparts in most states, may feel little pressure to address workers’ compensation costs for employers. Loss costs have dropped significantly over the last decade. In 2022, Georgia ranked 31st in the nation in average comp premiums, down from 15th in 2020, according to the Oregon Department of Consumer and Business Services Premium Ranking study.