It begins as your typical workers’ compensation scenario: Joe Claimant sustains a back injury while on the job, and is subsequently taken out of work by his physician. However, Joe does not receive workers’ compensation indemnity benefits during his time off, but instead, uses his accrued personal paid vacation, comprised of annual and/or sick leave.
It begins as your typical workers’ compensation scenario: Joe Claimant sustains a back injury while on the job, and is subsequently taken out of work by his physician. However, Joe does not receive workers’ compensation indemnity benefits during his time off, but instead, uses his accrued personal paid vacation, comprised of annual and/or sick leave. Joe uses up all his personal leave, and then begins receiving temporary total disability benefits (TTD). Then, Joe decides that he should have been receiving TTD for the period of time he took personal leave, and files a claim.
At first, this sort of scenario sounds simple: if Joe is found (as is likely) to be entitled to TTD for the time he took paid vacation, then the Employer can simply file a WC-243, and receive credit for the paid vacation that Joe received. After all, Rule 243 was enacted just for the purpose of allowing employers to take credit against weekly payments made to an employee, if they were payments made pursuant to a disability plan, a wage continuation plan, or a disability insurance plan. (See Board Rule 243). Generally, Rule 243 protects against the Claimant double-dipping and receiving BOTH indemnity and paid vacation.
But case law from a year ago has thrown a proverbial wrench into this sensible plan, and provided many claimants with incentives to attempt to double-dip. In Glisson v. Rooms to Go, 270 Ga. App. 68 (2004), the Court of Appeal addressed this issue, but unfortunately, left many unanswered questions, thereby making the Employer’s burden of proof of paramount importance.
Briefly, Phyllis Glisson was an employee of Rooms To Go, who injured her right shoulder on the job, and subsequently missed 52.75 days from work. Id. During these 52.75 days, Glisson took her accrued paid vacation and sick leave time, but she later asserted that she was entitled to TTD for that same period of time. Id. The ALJ found that Glisson was entitled to TTD during that period, but that the Employer could take credit for the paid vacation time. Id. However, the Appellate Division reversed, stating that Glisson was never entitled to TTD because since she was receiving paid vacation, the vacation functioned as an “award,” and that Glisson did not sustain any economic injury that would necessitate income benefits. Id. at 689-690. Hence, since the Appellate Division did not award TTD for the same period as paid vacation, the Employer did not need to take credit. The Superior Court affirmed. Id. at 690.
The wrench was thrown in when the Court of Appeals reversed the lower courts, finding not only was Glisson entitled to TTD for the same period as her paid vacation, but that the Employer could NOT take credit for the paid vacation time. Id. at 695. At first glance, it looks like the Court of Appeals sanctioned double-dipping.
With regard to TTD for the time Glisson took her paid vacation, the Court of Appeals reasoned that just because Glisson took her personal vacation, it did not constitute an “award,” and therefore, did not require her to show a change in condition, economic or otherwise. Id. at 690-691. However, the Court left this issue dangling because it never properly explained why it came to this conclusion. Hence, this complicates cases for future employers because the definition of what constitutes an “award” was left out to pasture by the Court.
Notwithstanding, the Court of Appeals appeared to make the Claimant’s argument for her: even thought she did not assert an economic injury, the Court stated that if she had been required to use her personal time before receiving indemnity, that she would have sustained an economic injury because it would have forced her to forgo her accrued time, which would then not be available in future instances of illness. Id. at 691-192. But there was never any evidence suggesting that Glisson was forced to use her personal time.
Although it was somewhat expected that the Glisson would be entitled to TTD, since there was little dispute that her injury arose from her employment, the Court’s next move is what created dangerous precedent: the denial of the Employer’s right to take credit for the paid vacation the Claimant used. However, in doing so, it appears the Court grossly overlooked the obvious and chose to rely on semantics instead.
The Court of Appeals decided that the paid vacation that the Claimant used did not constitute a “wage continuation plan” under O.C.G.A. §34-9-243 – a statement it supported by claiming that paid vacation was an accrued “benefit,” but not a “wage.” Id. at 694. Additionally, Glisson asserted she was not paid wages, but was just taking her accrued leave time. Id. at 692. But the Court of Appeals blatantly overlooked the fact that during Glisson’s vacation, she was paid her regular salary, a definite “wage,” and that the practical meaning of paid vacation is that it encompasses continuing wage payments during an employee’s absence.
Regardless, the Court went on to justify its decision holding that there are other such “benefits” against which the Employer may not take credit, like disability retirement, disability pension, and employer-funded death benefits. See City of Waycross v. Holmes, 272 Ga. 488, 489 (2000); City of Atlanta v. Arnold, 246 Ga. App. 762, 763 (2000); Brannon v. Georgia Bureau of Investigation, 146 Ga. App. 524, 525, (1978); Southern Bell v. Hodges, 164 Ga. App. 757, 762 (1982).
The bulk of this opinion rested on what the Employer SHOULD have produced as evidence. It appears that despite the fact that the Claimant’s paid vacation obviously necessitated the Employer to pay her wages during her time out, the Court of Appeals claimed that the Employer provided no evidence establishing that it had paid her, and that those payments were subject to taking credit. Id. at 692-693.
The Court further stated that the Employer provided no evidence that the Claimant chose to take paid vacation rather than indemnity benefits. Id. at 693. In doing so, the Court alluded to a prior decision in State v. Head, where in the State, as the Employer, provided a policy that clearly informed the employees that if they were injured on the job and took their personal leave time, that the State was entitled to credit if they subsequently sought indemnity for the same time period. See State v. Head, 163 Ga. App. 842 (1982). The Employees were informed that they had to elect IN WRITING if they would rather use workers’ compensation benefits (which would not create a credit for the Employer). Id. This policy created by the State Personnel Board effectively precluded the circumstance of the Claimant double-dipping because the Claimant was on notice that the Employer could take credit, and further, because it gave the Claimant the option of CHOOSING to take paid vacation or income benefits. If there was such a policy in Glisson, no evidence of it was ever produced. See Glisson, at 692.
Knowledge on behalf of the Employee is key: Previously, Employer had to show by means of a WC-1 or a WC-2, that the Claimant specifically elected to take paid vacation in lieu of benefits. See Davis v. Union Camp Corp., 188 Ga. App. 36, 37 (1988). However, this is no longer case law. See Glisson, at 694. Ironically, the Court of Appeals found that without such a showing, Claimants might unwittingly use up their paid vacation, without realizing they could have used income benefits, and this would inflict an “economic injury because [their] economic ability to weather the storm is compromised because [they] used personal leave when [they were] entitled to receive workers’ compensation income benefits” Id. at 691-692.
Hence, policy, if not law, mandates that the Employer produce evidence of the Claimant's election of paid vacation in lieu of income benefits to preserve its right to take credit against the paid vacation.
Thus Glisson presents Employers and Insurers with the following implications:
• If the Employer has a benefits option policy, it is of utmost importance that the policy clearly explains to the employees that they may CHOOSE to take paid vacation in lieu of workers’ compensation benefits, but that if they choose paid vacation, the Employer may take credit if indemnity is subsequently awarded for the same period.
• Second, the Employer should be prepared to show EVIDENCE that this policy existed, and that the Employee knowingly elected the paid vacation in lieu of indemnity.
• Third, if challenged, the Employer MUST be able to show that the claimant was actually paid wages during the time he or she was out on paid vacation. While it seems obvious that such time would be paid, the Court’s ruling mandates that the Employer cover all bases, and produce the payment records as evidence.
• Finally, the Employer MUST make the argument that the those wages were part of a “wage continuation plan” and are therefore subject to the criteria for credit under §34-9-243.
It should be noted that the dissenting opinions in the Glisson case addressed the issues of the Employer’s evidence, and found that the Employer did not lack evidence proving it paid the Claimant her wages. Rather, the dissent found that the burden was on Glisson to show her entitlement to benefits, and since the amount of paid vacation was not in dispute, and the Employer filed a WC-243 for credit, it should have been credited. As a further note, this case was subsequently denied certiorari to the Supreme Court of Georgia, hence its precedent stands for now. That is why it is imperative that Employers establish their evidence and unequivocally inform the Judges that Glisson does NOT automatically allow Claimants to double-dip, but simply creates a series of surmountable gauntlets over which the Employer can prevail with an “ounce of prevention.”