May 12, 2010

HORSEPLAY – IT’S NOT ALL FUN AND GAMES

by David W. Willis, Esq. and Melissa B. Whitman, Esq.


When are practical jokes in the workplace not funny? When injury results and the employee files a workers' compensation claim. In Georgia, when a nonparticipating employee is injured from a co-worker's "horseplay" the injured worker may be eligible for workers' compensation benefits. On the other hand, an employee who participates in horseplay and becomes injured in the process is probably not eligible for workers' compensation benefits.



There is no bright line definition of "horseplay" to define when an employee is acting outside the scope of his or her employment. As a result, Georgia courts decide what constitutes horseplay on a case-by-case basis. For example, workers' compensation benefits were denied when an employee was injured while engaged in a "finger wrestling match" with another worker (Universal Underwriters Ins. Co. v. Georgia Auto. Dealers Assoc., 182 Ga. App. 595, 356 S.E.2d 686 (1987)). However, benefits were awarded to an employee who, after he stopped engaging in horseplay, was struck by a spitball propelled by a co-worker and became injured. (Baird v. Travelers Ins. Co., 98 Ga. App. 882, 107 S.E.2d 579 (1959)).



What if the employer is aware of the horseplay? An Ohio appeals court recently decided an employer was liable for an employee’s injury when he sustained a neck injury during a river canoe outing, while attending a company team-building event. The employer argued the employee's actions were horseplay. However, the court found that injuries occurring during horseplay are compensable when the employer was "aware of and consented to" the actions which resulted in injury. Georgia has not yet specifically addressed this issue. However, in one older case, Knight v. Liberty Mut. Ins. Co., 131 Ga. App. 409, 233 S.E.2d 453 (1977), the Court of Appeals denied a workers’ compensation claim of an employee who was injured after a co-worker pulled his chair out from under him at work, despite the fact other documented horseplay incidents had occurred at the workplace. Whether Georgia and other jurisdictions begin looking closer at employers' knowledge and/or acquiescence to behaviors of their employees remains to be seen.



If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or by email at david.willis@davidandrosetti.com.

Workers’ Compensation in a ‘Precarious' Market – Employers Look For Ways to Reduce Costs and Increase Productivity

by David W. Willis, Esq. and Melissa B. Whitman, Esq.


On May 6, 2010, NCCI Holdings, Inc. released its annual State of the Line workers’ compensation market analysis. The report noted the workers’ compensation insurance industry had a “trying year in 2009” and a “series of unknown factors – from the pace of economic recovery to the long-term impact of the new federal healthcare law – leaves the line in a precarious position and facing a host of challenges.”[1]


In light of this outlook employers and insurers continue looking for new ways to reduce costs and improve safety in the workplace. Starwood Hotels & Resorts Worldwide, INTEGRIS Health, Inc., and Snap-on, Inc. recently addressed these issues at the Risk & Insurance Management Society Annual Conference & Exhibit. Due to ongoing workers’ compensation losses Starwood was forced to revamp its claims management and safety programs to reduce accident frequency and severity. Starwood began providing incentive programs and safety training to managers to accomplish these goals. INTEGRIS, a 14-hospital system with 9,000 employees improved a “very bad” loss scenario among its nurses by focusing on the practices of its nurses that regularly led to worker injuries, particularly moving patients out of hospital beds. To reduce those injuries, INTEGRIS hired a nurse to assess the physical demands of the job and teach peers how to better protect themselves from injury. The company also purchased equipment to assist nurses in lifting patients from beds. These measures helped create a “safety culture” which have reduced the company’s losses. Wisconsin-based Snap-on, a manufacturer of tools and equipment now treats workers’ compensation training as an employee benefit. At the time of hire employees are handed a DVD explaining their rights and responsibilities, and the responsibilities of doctors, claims administrators and other participants. The video includes testimonials from other injured workers who returned to work. Collectively, these companies have all taken pro-active measures resulting in savings on claims and increased productivity.[2]


If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or by email at david.willis@davidandrosetti.com.


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[1] NCCI News release, located at: https://www.ncci.com/nccimain/AboutNCCI/Newsroom/NewsReleases/Pages/SOLPressRelease2010.aspx

A Request for Catastrophic Designation Always Implies An Application for Additional TTD Benefits

by David W. Willis, Esq. and Melissa B. Whitman, Esq.


The Court of Appeals recently elaborated upon the statute of limitations issue involved in Georgia workers’ compensation claims. In Georgia Institute of Technology, et al., v. Hunnicutt (No. A10A0377, decided April 7, 2010) the Court examined the case of Linda Hunnicutt who experienced a compensable injury on May 6, 1996. The employer/insurer paid weekly TTD weekly benefits until February 2, 2004, the maximum number of weeks (400) available under O.C.G.A. §34-9-261. On July 27, 2005, the employee filed a request for catastrophic designation. She did not specifically ask for additional TTD benefits. The State Board Managed Care and Rehabilitation Division designated the injury as catastrophic in May 2006, but did not address TTD benefits. The employer/insurer appealed that ruling. They subsequently dismissed their appeal with prejudice and agreed to provide the employee with rehabilitation benefits.


On December 17, 2007, the employee filed her own hearing request seeking ongoing TTD benefits as a result of her catastrophic designation. The employer/insurer contended the employee was not entitled to TTD benefits as she was barred by the two year statute of limitation in O.C.G.A. §34-9-104(b). The employee argued that her original July 2005 request for catastrophic rehabilitation either (1) implicitly incorporated a request for further TTD benefits or, in the alternative, (2) tolled the statute of limitation. The employer/insurer responded that her request did not expressly seek income benefits, and therefore neither constituted a timely request for additional income benefits nor tolled the statute of limitation.


O.C.G.A. §34-9-104(b) states, “[A]ny party may apply under this Code section for another decision because of a change in condition [] ending, decreasing, increasing, or authorizing the recovery of income benefits awarded or ordered in the prior final decision, provided that … at the time of the application not more than two years have elapsed since the date the last payment of income benefits pursuant to Code Section 34-9-261 [(TTD income benefits)] … was actually made under [the Workers’ Compensation Act.] The Court also examined the language under O.C.G.A. §34-9-261, which states “in the event of a catastrophic injury as defined in subsection (g) of Code Section 34-9-200.1, the weekly benefit under this Code shall be paid until such time as the employee undergoes a change in condition for the better[.]” (Emphasis supplied.) Here, although the employee did not explicitly request additional TTD benefits in her July 2005 request for catastrophic designation, the Court found her request constituted an application for a “change in condition,” which would authorize the recovery of additional TTD benefits beyond those she had already received. Williams v. Conagra Poultry of Athens, 295 Ga. App. 744 (2009). Because her July 2005 request was filed within two years of the last payment of TTD benefits it was timely and not barred by the statute of limitation.


If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or by email at david.willis@davidandrosetti.com.