The Georgia Court of Appeals recently rendered an interesting decision in Davis v. Louisiana-Pacific Corp., A17A1726 (February 27, 2018). The case illustrates two points worthy of remembering in the world of workers' compensation. First, it is not always about accidents; work-related illness can be compensable. And second, there are territorial limitations to the application of workers' compensation laws and the award of benefits. There is also a third point perhaps overlooked: the law strives to provide predictability, which affects all involved.
The injured worker in this instance worked in Alabama between 1984 and 1998. After resigning from the Louisiana-Pacific Corporation (LP) in 1998, he moved from Alabama to Georgia. In 2015 he was diagnosed with mesothelioma, related to his exposure to asbestos while working for LP in Alabama. So, exposed for 14 years in Alabama, moved to Georgia, and after 7 years, he was diagnosed. Unlike a fall or similar trauma accidents, the effects of disease may take years to manifest.
He came under the care of Georgia physicians and began treatment. In August 2015 he "filed a claim for benefits" with the Georgia State Board of Workers' Compensation. The claim had to be pursued by his spouse following his death. As an aside, this form of cancer is diagnosed about 3,000 times per year in the U.S. According to Mesothelioma.com, something less than 10% of those live "five years or longer." Despite this low volume of diagnoses, there are seemingly plenty of TV lawyers advertising for mesothelioma claims.
The Georgia claim contended that Davis' work injury did not occur in Alabama as he labored and was exposed to asbestos. Instead, Davis contended that his workers' compensation injury occurred when "he was diagnosed and became disabled, both of which took place in Georgia, as did his work-related death." On the basis of this theory of "injury occurrence," the injured worker sought Georgia workers' compensation benefits and invoked the jurisdiction of the Georgia system.
The Administrative Law Judge (ALJ) concluded that the Georgia Board did not have jurisdiction. Georgia has an extensive appellate process in workers' compensation. The decision of the ALJ was reviewed and affirmed by the Workers' Compensation Board. The claimant sought review then in the Superior Court (constitutional trial court), which also reached the same conclusion. Finally, the Court of Appeals rendered this decision, which affirmed the conclusions also.
The claimant relied upon Georgia's statute OCGA § 34-9-281(a) "Compensation for Occupational Disease." That section provides that "the disablement or death of an employee resulting from an occupational disease shall be treated as the occurrence of an injury by accident." Thus, the argument that the claimant's disablement in Georgia was an "accident" as contemplated by the Georgia workers' compensation law.
The Court of Appeals noted, however, the language of §34-9-242, which describes the jurisdiction of the Georgia Board. The Court concluded that "if the “accident” occurred while Davis was employed in Alabama, he does not meet the conditions of coverage under the Act." The Court interpreted the two statutory provisions and concluded that:
Although Davis did not have a work-related “injury” under the Act until his 2015 diagnosis and disablement in Georgia, the “accident” that resulted in Davis’s injury was his exposure to asbestos while he was employed in Alabama.
The Court explained that:
“Injury” is not synonymous with “accident.” To conclude otherwise would render the word “accident” superfluous in the phrase “injury by accident.”
Furthermore, the application of OCGA § 34-9-281(a) is specifically limited in the opening words of that section "where the employer and employee are subject to this chapter." The Court explained that this section thus does not create jurisdiction over events occurring out of state, but merely defines how occupational disease will be treated when the parties "are subject to this chapter," that is, within the jurisdiction of the Board already through operation of some other law.
The Court reminded that the "Board is a 'creature of statute' with only the jurisdiction, power, and authority conferred upon it by the General Assembly." It conceded that the law instructed that:
"The Act “shall be liberally construed only for the purpose of bringing employers and employees within the provisions of [the Act] and to provide protection for both.
However, it noted that the "Assembly chose to exclude compensation for an 'accident' that occurs while the employee is employed outside the state except" as specifically provided in the law. §34-9-242. Thus, the inclusion of other out-of-state events or exposures would be beyond a "liberal construction," but instead would "expand that provision."
The Court noted that there was no dispute that the contract of employment, between claimant and LP occurred in Alabama as well. This may all leave the casual observer with various questions. Such as, why not file this claim for survivor benefits in Alabama instead? There are possibly legal answers to such a question, as well as perhaps practical answers. From the practical perspective, with all of the medical care having been rendered in Georgia, and that being the home of the survivors, it may quite simply be more convenient.
Legally, there are various potential explanations. For example, it is possible that the statute of limitations for pursuing a claim or the available benefits from a claim might be advantageous in Georgia. It is also possible that the burden of proof regarding the causation of a disease might be more difficult in Alabama. These are merely possible examples, but they illustrate that workers' compensation laws are different across the country. In seeking the most favorable outcome for a client, attorneys on either side of a benefit dispute might prefer one jurisdiction over others.
Finally, it bears mentioning that there is a value in predictability in workers' compensation. Though there are many employers in the U.S. that pay their own workers' compensation benefit costs (called "self-insured"), there are many more that choose to provide those benefits by purchasing workers' compensation insurance. The actuaries that run the world (Many think it is doctors or lawyers, but the accountants really run things), make predictions regarding risk. Those predictions are based in large part on what law will apply and how that law will be interpreted.
The accountants predict how many people will become injured or ill and how severe those conditions are likely to be both in terms of duration and intensity. They decide that they will or will not accept risk (sell a particular employer insurance) based upon a "risk/benefit analysis." Most of us do the same in making various life decisions.
For example, if you hear about a Justin Bieber concert, but tickets can only be purchased at the theater at a particular time, you decide if those tickets are worth making a trip to the theater (how far is it?), worth sitting in the line (how long is the line? What is the weather like?). You worry that there may be no tickets left when you reach the window. You weigh those risks against the benefit you think you would earn (to see the Biebs, to finally be a "Belieber").
In making those decisions, you need sound data. How many tickets will be offered, how much are they, how many people are in the line, etc. If your information is flawed, then your analysis process may fail you. Having stood in line for hours, and paid for your ticket, what if you learned the show is not in your town, but in Georgia. Nothing wrong with Georgia, but it simply may not be what you thought you were buying, and the trip to Georgia may be an expense upon which you simply did not plan.
Everyone thus finds some value in predictability. Some degree of the Georgia decision discussed above is based upon state law providing that predictability. While that is appropriate, it is important to remember that workers likewise seek predictability. They generally have far less access to information, or motivation to study the potential of future loss. Employees are unlikely to think ahead about some hypothetical, potential, injury ("it could never happen to me"). Employees tend to become interested in workers' compensation only after an accident when the system becomes a reality for them personally.
Those who will pay the risk are more likely interested before, because they predict statistically that, someone will be injured and they will face costs. They neither know nor care who in particular will be injured, but they strive to know their risk, just as car insurers predict how many vehicle accidents are likely, and how severe they are likely to be.
Predictability is important. But it is important for both those who would be liable to pay and for those who depend upon workers' compensation for their livelihood following an injury or illness. Some may argue that this Georgia decision provides that predictability, and that the workers' relief lies in Alabama. Others may argue that the workers' interpretation of Georgia law was logical and afforded its own predictability; they would perhaps argue this decision disrupts predictability.
Of course, the purpose of appellate courts is to interpret statutes, as the Georgia court did here. Critically, the consistency everyone seeks may not come from the statutes themselves, but from consistent interpretations in the Courts, what lawyers call stare decisis. Perhaps nothing is more important in regard to predictability than the consistency of appellate courts. See A Kentucky Constitutional Decision (April 2017), Kentucky, Stare Decisis, and Noncompliance, (July 2016); Stare Decisis, Livingood, Goodgame, and Westphal (October 2015).
In the end, the Georgia decision is instructive. It reaffirms the goal of predictability, though not specifically. The analysis demonstrates statutory construction and interpretation, the hallmarks of appellate courts. And, finally, it illustrates the inherent feature of American workers' compensation, that much depends on which state in which one is hired, is injured, and seeks benefits.
Everyone thus finds some value in predictability. Some degree of the Georgia decision discussed above is based upon state law providing that predictability. While that is appropriate, it is important to remember that workers likewise seek predictability. They generally have far less access to information, or motivation to study the potential of future loss. Employees are unlikely to think ahead about some hypothetical, potential, injury ("it could never happen to me"). Employees tend to become interested in workers' compensation only after an accident when the system becomes a reality for them personally.
Those who will pay the risk are more likely interested before, because they predict statistically that, someone will be injured and they will face costs. They neither know nor care who in particular will be injured, but they strive to know their risk, just as car insurers predict how many vehicle accidents are likely, and how severe they are likely to be.
Predictability is important. But it is important for both those who would be liable to pay and for those who depend upon workers' compensation for their livelihood following an injury or illness. Some may argue that this Georgia decision provides that predictability, and that the workers' relief lies in Alabama. Others may argue that the workers' interpretation of Georgia law was logical and afforded its own predictability; they would perhaps argue this decision disrupts predictability.
Of course, the purpose of appellate courts is to interpret statutes, as the Georgia court did here. Critically, the consistency everyone seeks may not come from the statutes themselves, but from consistent interpretations in the Courts, what lawyers call stare decisis. Perhaps nothing is more important in regard to predictability than the consistency of appellate courts. See A Kentucky Constitutional Decision (April 2017), Kentucky, Stare Decisis, and Noncompliance, (July 2016); Stare Decisis, Livingood, Goodgame, and Westphal (October 2015).
In the end, the Georgia decision is instructive. It reaffirms the goal of predictability, though not specifically. The analysis demonstrates statutory construction and interpretation, the hallmarks of appellate courts. And, finally, it illustrates the inherent feature of American workers' compensation, that much depends on which state in which one is hired, is injured, and seeks benefits.
