May 05, 2012 BY Def Admin
They'll Try Anything: An Uninjured Claimant Requests Benefits Based Upon A 'Perceived Disability'
A central tenet of the Georgia Workers’ Compensation system is that a worker must be injured before he is qualified to receive weekly indemnity benefits. However, in one of the most novel theories of recovery ever, a claimant contended he should be entitled to benefits, not because a doctor placed restrictions upon him, but because his employer refused to comply with restrictions the claimant placed upon himself based upon Internet research. Fortunately this claimant was rebuked at every level, from the Administrative Law Judge all the way to the Georgia Supreme Court, who denied certiorari. Christensen v. Envtl. Resources Mgt., 2012 Ga. LEXIS 271 (Mar. 5, 2012). While the outcome may seem trivial and obvious, had the decision gone the other way, it would have fundamentally transformed the workers’ compensation system in Georgia.
Mr. Christensen, claimant, was employed by an environmental remediation company. Claimant often worked with an inert chemical called potassium permanganate during the remediations. On October 19, 2007 he was working on a site using potassium permanganate when he unexpectedly fainted. The fainting was caused by claimant’s heart stopping. Fortunately claimant was revived through the actions of a quick-thinking co-worker. Claimant spent a few days in the hospital, and was released to full duty on October 30, 2007, just 11 days later after the accident. Claimant received no medical treatment after March 2008. In addition, no medical provider ever determined the cause of the stoppage. However one of the providers provided an opinion specifically stating that potassium permanganate was not the cause of his injuries.
Normally this would be the end of the story, especially as the claimant never contested the full duty release. Instead, a few months after the accident he honeymooned with his new bride in Costa Rica, participating in various physical activities such as hiking, all without suffering any subsequent problems. In addition, he continued to take jobs as a handyman, something he had also done on the side prior to the accident. Finally, he actively sought to go back to work with the employer. However, before he would return to work, he insisted on several demands, the most important of which was the employer providing him with a respirator. He based his demands upon Internet research that was never produced during discovery nor at the hearing. Conversely, the manufacturer of the potassium permanganate does not require the use of a respirator while using their product.
As stated above, the actual cause of claimant’s heart stoppage could never be determined. Therefore in an abundance of caution, the employer decided not to place claimant on any projects involving potassium permanganate. Unfortunately, the employer had very few projects not involving the use of this chemical. In addition, due to the dramatic economic collapse of the construction industry, the employer’s business had slowed drastically. The combination of these three factors effectively meant that there was no work available for claimant to do. Because claimant was not working, he filed a hearing request, requesting that indemnity benefits be commenced, His theory was that he had a ‘perceived disability’: in essence, he should receive benefits because the employer would not return claimant to work for a reason relating to his work injury.
At hearing, the burden of proof was upon the claimant to establish by a preponderance of evidence that he has 1) sustained a loss of earning capacity as a result of a compensable work related injury, 2) continues to suffer physical limitations attributable to the compensable on-the-job injury, and 3) has made a diligent but unsuccessful effort to secure suitable employment elsewhere.” Diamond Rug & Carpet Mills v. Moses, 221 Ga. App. 807 (1996). All of the courts before which this claim was brought found that because the claimant has no medical proof he is disabled, there is no way to meet the required burden of proof.
In addition, the employer successfully argued that O.C.G.A. §§ 34-9-261 and -262 specifically requires adisability before the employer is required to pay either temporary total or temporary partial disability benefits. Even the names given to these benefits, temporary total disability and temporary partial disability, show that some sort of disability is required before these benefits are owed.
Common sense also dictates that a worker should not be entitled to claim disability benefits without actual proof of disability. Under Appellant’s irrational theory, medical evidence would mean nothing in a workers’ compensation hearing, as benefits would be granted simply when requested by the claimant, without any further proof of disability required. Workers’ Compensation would become an automatic and unilateral “payment upon demand” system never contemplated by the legislature nor decades of decisions from this court. See Scandrett v. Talmadge Farms, 174 Ga. App. 547, 330 S.E.2d 772 (1985); City of Augusta v. Rosier, 119 Ga. App. 192, 166 S.E.2d 378 (1969).
Had the Administrative Law Judge’s decision been overturned by either the Court of Appeals or the Supreme Court, it would fundamentally transform the Georgia Workers’ Compensation system by nullifying the requirement that claimant offer evidence of a medical disability before receiving benefits. Although it sounds nonsensical, if claimant prevailed, his Internet research would trump the medical opinions of his authorized treating physician, as well as the recommendations of the manufacturer of the product he was using.
Other states, such as Kentucky and North Carolina, have workers’ compensation systems more similar to the theory proposed by claimant, although fortunately not to this extreme. This claimant-friendly atmosphere results in increased premiums paid by the employers due to the increased exposure faced by the insurers. The exposure is almost automatically increased as the standard ways to defend the claim, such as sending claimant for an Independent Medical Examination, sending the claim for a medical peer review, or using discovery tools to determine if an injured worker is working and/or performing activities of daily life without pain, carry less significance.
In this claim, the claimant did not receive a penny in indemnity benefits. In terms of the broader picture, the claim changed nothing in Georgia workers’ compensation law. However, it is what this claim did not do that is important. The result confirms that a claimant must still take affirmative steps to prove his disability through medical evidence that he or she is disabled before benefits commence. As sure as the sun rises each day, claimants will continue to explore other novel means of obtaining benefits. Fortunately for employers and insurers, benefits cannot be obtained through a ‘perceived discovery’ theory.
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.
H. Michael Bagley