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.
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 earlier 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 posted 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 justices wrote.
Taken together, the three court decisions present a difficult situation for employers and trucking companies, defense attorneys said.
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Georgia Workers' Compensation Numbers
