June 03, 2013 BY Whitney Lay Greene
Whose Right Is It Anyway? An Employer/Insurer's Right (Or Lack Thereof) To Add Parties To A Hearing
In a typical workers’ compensation claim, “Employee” is working for “Employer 1”, gets hurt on the job, and requests a hearing to seek benefits from Employer 1. Less frequently, we see scenarios where Employee gets hurt working for Employer 1, comes back to work, leaves Employer 1 to go work for Employer 2, and then goes back out of work again based on the same injury he sustained with Employer 1 (or an aggravation thereof). This scenario presents the classic set-up for litigation of whether Employee sustained a change of condition for the worse (such that Employer 1 would be liable) or a new accident (such that Employer 2 would be liable).
From here, if Employee pursues his claim against both parties, both employers will come to the hearing, and the Judge will determine whether Employee sustained a change in condition for the worse, and hold Employer 1 liable, or a new accident, and hold Employer 2 liable. But what happens if, for whatever reason, Employee decides to only pursue his claim against Employer 1? Does Employer 1 have the right to file its own WC-14 hearing request adding Employer 2 as a party?
There is certainly debate about the answer to that question. On the one hand, the claimants’ bar strongly believes that the claimant has the sole right to determine against whom he or she wishes to pursue his or her claim, as it is the claimant’s right to compensation which will be determined. On the other hand, employers and insurers have rights in the workers’ compensation system as well, and, arguably, specifically the right to bring in any other party who might be liable for payment of benefits--just as a defendant in a civil claim involving a three car pile up would have the right to bring in that third party. Other practical arguments favor this right as well.
As a starting point, the bottom line is that Employee either suffered a change in condition or a new accident—it cannot be both. As such, having a hearing with all potentially liable parties allows for a final determination as to which occurred. Moreover, the defense lawyer for Employer 1 is necessarily going to be pointing to Employer 2 as liable for the Claimant’s injury. If Employer 2 is not there, the Judge cannot legally find that Employer 2 is liable, because Employer 2 is not a party to the case. Lastly, adjudicating both potential claims at the same time serves judicial economy because, if the hearing goes forward against Employer 1, Employee would still be free to pursue his or her claim against Employer 2 later on, and there could be another hearing regarding the same issue down the road.
Although the law is currently somewhat unclear as to whether an employer/insurer has the right to add another employer/insurer to a hearing, there is some legal authority which suggests such a right does exist. O.C.G.A. §34-9-100(a) reads, “[s]ubject to Code Section 34-9-82, a claim for compensation may be filed with the Board at any time following an injury or death. The Board and its administrative law judges shall have full authority to hear and determine all questions with respect to such claims.” The very next subsection is even more on point and states, “[t]he board shall make or cause to be made any investigation or mediation it considers necessary and, upon its own motion or application of any interested party, order a Hearing thereon…” If the legislature intended that only claimants would have the right to request a hearing, it seems the language of the statute would reflect that intention. As such, the use of “any interested party” instead of “claimant” seems significant. Therefore, given that the Board has full authority to hear and determine all questions with respect to a workers’ compensation claim, and that a hearing can be held upon the application of any interested party, the law seems to contemplate that any party to a workers’ compensation claim is free to request a hearing.
There is also case law which supports the right of an employer/insurer to request a hearing against another employer and/or insurer. In Cypress Companies et al. v. Brown, 246 Ga. App. 804 (2000), the question before the Court was precisely the question presented by the scenario described earlier: whether the claimant sustained a change in condition for the worse or a fictional new accident date and, thus, whether the Claimant’s “original” employer (Employer 1) or the “successor” employer (Employer 2) was liable for payment of compensation benefits. In its opinion, the Court notes, “[a]t Den America’s behest [Employer 1], Cypress and Safeco [Employer and Insurer 2] were added as parties.” Id. “Behest” is defined by Webster’s Dictionary as, “a command or directive” or “a strongly worded request.” Thus, it seems almost certain that Employer 1 in Cypressdid file a hearing request adding Employer 2 as a party. Furthermore, Cypress was a heavily litigated claim which reached the Georgia Court of Appeals, without anyone raising the question of whether Employer 1 had the right to add Employer 2 as a party. Given that both employers and claimants have significant interests at stake, the question of whether an employer can request a hearing against another employer will likely remain a highly contested issue.
In the event filing a WC-14 hearing request to add another employer was not successful, there is an alternative option. Under O.C.G.A. § 34-9-102(c), an administrative law judge has the authority to add or delete parties. Thus, Employer 1 could simply file a motion requesting to add Employer 2 as a party to the claim. Based on the statute, there should be no question that the judge would be acting within his or her authority by granting the motion.
Ultimately, however, there are both legal and practical arguments which favor the right of an employer to file its own hearing request adding another employer, such that one should not shy away from asserting the right if presented with the above-described scenario. Once in front of a judge for determination, the issue may come down to a basic question—whose right is it anyway?
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