After three major Georgia appeals court decisions went against employers in the past five years, some insurance defense attorneys fear that, despite years of rate cuts and a pro-business atmosphere, the state's workers' compensation laws have become costly for insurers and companies in this deep-red part of the country.
“It's a trend that we've noticed at all levels of the courts,” said Atlanta-based Samantha Lewis, a partner at law firm Parker Poe, who represents school districts in workers' compensation claims.
The trend began in 2018 and solidified during the COVID-19 pandemic, as courts, lawmakers and the public appeared to express new compassion for certain types of workers, said Lewis and her colleague Elizabeth Phrampus.
Plaintiffs' lawyers were surprised by the claims and argued that the judges had simply interpreted the law as it was written.
“I really don’t see a trend toward injured workers,” said plaintiffs’ attorney Todd Maziar of the Georgia Legal Foundation, which filed an amicus brief in a recent appeals court case. “These are cases with facts where 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 – have correctly interpreted the intent of the competition laws and not legislated from the bench, he added.
While insurance and employer groups have long argued that some states, including California, New York and Illinois, have passed laws over the decades that could be viewed as too “worker-friendly” or too burdensome on employers, Georgia has a two-thirds Republican majority Legislative is not one of them.
“I think it's hard for you to say that Georgia's workers' compensation laws are too worker-friendly,” said Tom Holder, an Atlanta plaintiffs' attorney and former president of WILG, the Workers' Injury Law and Advocacy Group.
Lewis
The court decisions that trouble Lewis and Phrampus began in 2018's Cartersville City Schools v. Johnson. The Georgia Court of Appeals essentially limited employers' use of the “idiopathic disease” defense, which had allowed companies to claim make that some injuries are of unknown origin, not necessarily workplace-related.
In this case, a teacher fell in the classroom, injured her knee and required surgery. She filed a lawsuit, claiming that the injury resulted from her job duties, namely having to weave through narrow rows of desks all day. The school district argued that her knee condition was due to everyday activities outside of the classroom.
The appeals court reversed previous ruling and affirmed a lower court that had rejected the state workers' compensation board's rejection of the teacher's claim.
“The evidence demonstrated that plaintiff was actively performing the movements and behaviors required of her as a classroom teacher when she fell and injured herself as a result of one or more of those movements,” the appeals court judges wrote.
“This case started this roller coaster ride,” Lewis said.
Maziar countered that the idiopathic defense has been confused by the courts and abused by insurers for many years.
Then came the Frett decision in 2020, Lewis and Phrampus said. In Frett v. State Farm, the Georgia Supreme Court overturned the appeals court and longstanding case law that held that injuries that occur during an employee's scheduled break are typically not compensable.
The Supreme Court found that Frett, a claims adjuster at State Farm, slipped and injured herself on a wet floor at work while she was on break. The court's 1935 decision allowing the “scheduled breaks” defense made no sense and was “not bound by the analytical framework that this court has consistently applied in workers' compensation cases,” Judge Keith Blackwell wrote in Frett's opinion.
In the most recent case cited by defense attorneys, Lilienthal v. JLK Inc., the state appeals court found in May of this year that a list of treating physicians was not prominently displayed when it was stored 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 said. The school gave her a list of doctors but made an appointment at a nearby clinic. Workers' compensation law allows the insurer/employer to select the six doctors, but the list must be prominently displayed in the workplace.
An administrative law judge ruled that the room where the list was displayed was “accessible” and upheld the dismissal of Lilienthal's lawsuit. But the appeals court judges found that the ALJ had misinterpreted the law.
“We conclude that the ALJ erred in conflating the concept of accessibility with salience. The fact that a panel is located in a technically 'accessible' location does not mean that it is located in a 'prominent,' conspicuous or easily visible location,” the appeals judges wrote. “In fact, given the facts of this case, the medical board was not easily recognizable to most employees who worked on the premises.”
Lilienthal's attorneys argued that the law essentially allows an injured worker to choose her own doctor because the list is not prominently displayed. However, an ALJ denied the teacher's request to see the doctor of her choice who recommended knee surgery.
Maziar
On appeal, Maziar wrote in his amicus brief that the only notice to workers, as established by a 1994 revision of the comp law, is the posted list of doctors, rather than a list given after an injury.
“Medical groups 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 rarely used, closed hallways.”
The appeals court concluded that the ALJ and the Board of Workers' Compensation were wrong and remanded the case to the Board for rehearing. 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 raised too many questions about what could be considered a celebrity contribution. Splitting hairs, the decision could now lead to more workers being able to choose their own doctors, potentially leading to higher treatment costs for work-related injuries.
Taken together, the three court decisions present a difficult situation for employers and trucking companies, defense attorneys said.
Maziar and Holder said there is no trend and that Georgia lawyers are not suddenly uniting with workers.
The vast majority of judges on the highest courts were appointed by Republican governors, if party affiliation can be used as a rough indicator. Eight of the 13 appeals court judges were appointed by Republicans, a party that has historically sided more often with employers than with workers' rights. Two Republican-appointed justices agreed with the Lilienthal decision.
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One of the appeals judges, Christopher McFadden, lists his membership in the Federalist Society, an organization that promotes a textualist interpretation of the U.S. Constitution. Some critics say the society is seen as too conservative and too supportive of business interests. McFadden agreed with the 2018 Cartersville vs. Johnson opinion. And eight of the nine Supreme Court justices were appointed by a Republican governor.
Some Republican-dominated state legislatures have moved in recent years to correct laws and court decisions that were seen as too worker-friendly or too costly for employers. In Kentucky, lawmakers eliminated lifetime medical benefits for some long-term injuries in 2018. In Tennessee, attorneys for some plaintiffs have alleged that the laws have dramatically reduced legal fees for workers, forcing some attorneys out of the injury practice and making it difficult for injured workers to find representation.
And in West Virginia, lawmakers in 2020 reshaped the court system, eliminating some ALJs and creating a new appeals court. A plaintiff's lawyer recently said that since the new system was introduced, the vast majority of decisions have been in favor of companies and against workers.
But in Georgia, both sides of the debate said they had not heard any rumors that state lawmakers might now try to restore some of the defenses destroyed by the statements from Lilienthal, Frett and Cartersville City Schools.
“I haven’t heard anything about that,” Lewis said.
Officials in Georgia, like their counterparts in most states, may feel little pressure to address workers' compensation costs for employers. Claims costs have fallen significantly over the last decade. According to the Oregon Department of Consumer and Business Services' Premium Rankings study, Georgia ranked 31st nationally in average compensation awards in 2022, compared to 15th in 2020.
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