EMPLOYEE WHO FAILED TO DISCLOSE PRIOR WORK INJURY STILL ENTITLED TO WORKERS’ COMP BENEFITS

EMPLOYEE WHO FAILED TO DISCLOSE PRIOR WORK INJURY ON JOB APPLICATION STILL ENTITLED TO WORK WITHIN RESTRICTIONS OR WORKERS’ COMPENSATION BENEFITS FROM CURRENT  EMPLOYER

McDuffie v. Ocmulgee EMC, 338 Ga. App. 200, 789 S.E.2d 415 (2016), illustrated an extremely convoluted decision from the Georgia Court of Appeals.

Ten judges participated in this decision. Three judges wrote the “majority opinion.”  Three more judges concurred in part of that opinion and concurred in the judgment reached.  Three more judges concurred in the judgment only and one judge dissented.

This case had its inception in 2002 when Kasabian McDuffie injured his right knee while employed by Eastman Youth Development Center [EYDC].  By July of 2003 he had undergone three knee surgeries.

He settled his claim for workers’ compensation benefits with EYDC.  In the settlement agreement McDuffie admitted that he was partially disabled, that his condition would not improve, and that there was no possibility that he could perform the same type of work on a regular basis in the future.

McDuffie’s doctor gave him a 20 percent permanent impairment rating for his right knee and placed him on permanent sedentary work restrictions.  McDuffie was out of work from 2002 to 2006.

In March of 2007 McDuffie applied for a job and was hired as a “meter reader/right-of-way laborer” by Ocmulgee Electric Membership Corporation [EMC].  On his EMC job application he failed to disclose his employment with EYDC, his 2002 injury, or his permanent sedentary work restrictions.  This information would have shown that McDuffie was physically unable to perform the job for which he was applying.  To the contrary, he indicated that he would be able to perform the duties of the job, which was not sedentary.

In September of 2009, while on the job for EMC, McDuffie stepped in a hole and re-injured his right knee.  EMC began paying workers’ compensation indemnity benefits.

EMC discovered that McDuffie had falsified part of his job application in March of 2010 when he stated he was physically able to do the job and failed to disclose his prior injury or sedentary work restrictions.  McDuffie was fired and his benefits were suspended.

McDuffie’s benefits were reinstated in February of 2011 when McDuffie’s physician, Dr. Pope, recommended additional surgery.  That surgery was performed in March of 2011, after which Dr. Pope stated that McDuffie could return to work with sedentary restrictions.

In July of 2011 Dr. Pope found that McDuffie’s knee had returned to the condition that existed before the 2009 injury.  A second physician, Dr. Gupta, agreed.  McDuffie’s indemnity benefits were again suspended.

McDuffie sought reinstatement of his workers’ compensation indemnity benefits.  A hearing was held before an administrative law judge [ALJ] who denied McDuffie’s request.  This decision to deny reinstatement of benefits was affirmed by the Appellate Division of the State Board of Workers’ Compensation, and affirmed again by the Dodge County Superior Court.

This appeal followed.

McDuffie first argued that the determination that his knee had returned to its pre-2009 condition was improper because of all the contradictory evidence of his actual physical condition that existed before 2009.

According to the Georgia Court of Appeals, the employer had the burden of proving that the employee’s condition had improved.  On appeal, the decision of the ALJ on this issue would not be disturbed if there was any evidence to support it.  The ALJ’s responsibility included weighing the evidence and resolving questions of fact, sometimes from conflicting evidence.

In this case, Dr. Pope stated that, following the March 2009 surgery, McDuffie had returned to his pre-2009 condition, and Dr. Gupta reached the same opinion.  There was conflicting evidence in the record, but the finding of the ALJ was supported by some evidence.  The Georgia Court of Appeals affirmed the decision of the lower tribunals on this first issue.

The second argument raised by McDuffie in this appeal was that the medical opinions of Dr. Pope and Dr. Gupta did not constitute legally competent evidence.  According to McDuffie, their opinions were not based on “reasonable medical certainty.”  As such, it was improper for the ALJ even to consider this evidence in support of the findings of fact.

The court of appeals stated that medical opinions based on “reasonable medical certainty” were not required in workers’ compensation cases.  A “reasonable probability” was all that was required.

The court further noted that both medical opinions were based on the doctors’ personal observation and knowledge of McDuffie, and the fact that both had treated McDuffie.  The court rejected McDuffie’s second argument.

Of the ten judges of the Georgia Court of Appeals who participated in the consideration of this case, six judges joined in this first portion of the “majority opinion,” responding to the first two arguments raised by McDuffie in this appeal.

McDuffie’s third and final argument appeared to create much more controversy within the court.  He argued that the employer, Ocmulgee EMC, was required to show that suitable employment for McDuffie was available.

The “majority opinion” of the Georgia Court of Appeals agreed with this argument.  The court began its analysis by quoting a portion of a case from 1992:

Where the evidence authorizes, as it did in this case, a finding that the claimant has fully recovered from the injury received on the job and no longer suffers any disability therefrom, an award holding that there has been a change in condition is proper. This is true even though the claimant is disabled if such disability is due to causes unrelated to the on the job injury.

According to the court of appeals, this meant that EMC could not suspend workers’ compensation benefits based on an improvement in McDuffie’s condition unless EMC showed that McDuffie could return to work because of that change and that EMC had offered him suitable employment.  If no suitable work was available, then EMC would be required to continue paying benefits.

The court then paid homage to long standing principles of workers’ compensation that it invokes when it chooses to do so:  that the law is remedial in nature and must be construed liberally in favor of employees to accomplish its purposes.

The ALJ made no findings or decision on any of these issues relating to suitable employment or its availability.  Accordingly the Georgia Court of Appeals vacated the judgment in this case.  It was remanded with instructions to address these issues raised in McDuffie’s third argument.

Only three judges joined in this final portion of the “majority opinion” relating to McDuffie’s third argument.  Six other judges of the Georgia Court of Appeals who participated in the consideration of this case concurred in the judgment only.  This could potentially limit the future precedential value of this decision.