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Rehabilitation Counselor V. Rehabilitation Supplier Avoiding Defense Problems In Change In Condition Litigation

January 04, 2007 BY Def Admin

            The recent Georgia Court of Appeals’ holding in Korner v. Education Management Corporation, 2006 Ga. App. LEXIS 1089, illustrates how important it is not only to obtain the best qualified witness in support of your defense, but also to obtain evidence which corroborates the witnesses’ opinions.  It is no secret that employers and insurers prefer to keep defense costs low.  Defense counsel must always keep this in mind when preparing the defense, obtaining evidence and retaining witnesses.  However, in being fiscally frugal, we may ultimately be shooting ourselves in the foot with regard to the strength of our defenses.

            In the Korner case, a clinical therapist with a Master’s Degree was attacked by the student she was counseling.  Id., at p.1.  Her physical injuries were not significant, but her post-traumatic stress disorder and ensuing psychological treatment were.  Id.   While the Employer and Insurer did not deny the claimant could no longer work as a therapist, they did file a hearing request seeking to suspend claimant’s TTD benefits based on a change in condition for the better.  Id., at p.2.

            To establish a change of condition for the better under O.C.G.A. §34-9-104(a), the Employer and Insurer had to prove: (1) the claimant had undergone a change in condition for the better, (2) was capable of working, and; (3) suitable work was available for the claimant.  At the Administrative Law Judge hearing, the Employer and Insurer offered one witness in support of their claims—a rehabilitation counselor.  Id., at p. 5. The rehabilitation counselor prepared a labor market survey, based on 10 pages of the claimant’s deposition and her notes from her conversation with defense counsel.  Id.  The rehabilitation counselor then identified 10 different jobs in which she believed the claimant was capable of working.  Id. 

            After the evidentiary hearing, the Administrative found the claimant had undergone a change in condition for the better.  The claimant appealed to the Appellate Division, who reversed.  Id., at p. 2-3.  The Appellate Division of the Georgia State Board of Workers’ Compensation uses a de novo standard to review cases.  O.C.G.A. § 34-9-103.  In non-lawyer talk, that means the only restriction on the Appellate Division’s ability to reverse the Administrative Law Judge’s decision is that the decision must be supported by a preponderance of the competent and credible evidence.

            The Appellate Division, in reversing the ALJ’s decision in Korner, discounted the rehabilitation supplier’s testimony.  Id., at p. 6.  Most of the ten jobs identified by the rehabilitation counselor required prior experience in that same type of job or were clerical in nature.  Id.   Perhaps most damning in the eyes of the Appellate Division, though, was that one of the jobs the rehabilitation counselor recommended was a foreign student advisor.  Id.  The student who attacked the claimant was foreign—a fact which the rehabilitation counselor did not know.  Id.

            The rehabilitation counselor was forced to admit at the hearing that she did not know the claimant’s pay rate at the time of her injury, and did not know if the claimant had any clerical, sales, marketing, communications or administrative experience.  Id., at 6.  Furthermore, the rehabilitation counselor damaged her credibility with the Appellate Division by admitting she had not talked to the claimant or her treating physicians. Id.

            The Employer and Insurer appealed the Appellate Division’s award to the Superior Court.  Id.  On appeal, the standard of review the Superior Court uses is the “any evidence” rule, which basically requires them to uphold the Appellate Division’s decision if any evidence supports it.  Collie Concession, Inc. v. Bruce., 272 Ga. App. 578, 612 S.E.2d 900 (2005).    Despite this, the Superior Court reversed the Appellate Division’s decision.  Id., at p. 3.

            The claimant appealed to the Georgia Court of Appeals who reversed the Superior Court’s decision.  Id., at p. 5.  The fact that the Court of Appeals upheld the Appellate Division is not surprising, given the “any evidence” standard to which the Superior Court failed to adhere.  The lesson to be learned in this case is the Board’s position on expert witnesses and corroboration.  The Employer and Insurer defended the rehabilitation counselor’s testimony and pointed out that a counselor who is not a direct employee of the employer or insurer may not have direct contact with the claimant or her treating physicians.  Id., at p. 6, 7; O.C.G.A. § 34-9-200.1 (a)(1)(iii).  The Board indicated that the Employer and Insurer picked their own witness, but could have used a rehabilitation coordinator, who would then have been able to speak to both the claimant and the claimant’s treating physicians. Id., at p. 7.  The Board also indicated that the Employer and Insurer could have sent the claimant for an independent medical examination and that the IME physician could have testified on the issue of suitable work.  Id.

            It seems clear from the Korner case that the Board expects more from a labor market survey than just a cursory determination of available jobs.  It is incumbent upon defense counsel to take a thorough deposition of the claimant to determine transferable skills and prior work experience which would assist the expert witness in preparing a labor market survey.  Once the report has been prepared, an opinion should be solicited from the current treating physicians and/or an IME physician to determine their thoughts on the jobs’ suitability for the claimant.  It appears, then that to avoid a Kroner outcome when trying a change in condition claim, defense counsel must obtain a thorough opinion from a fully qualified rehabilitation supplier, and must also provide corroborating medical evidence of the jobs’ suitability.

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

Editorial Board:

H. Michael Bagley