Since the last guidance release in 1998, retaliation claims have doubled. To that end, retaliation claims are currently the most alleged form of discrimination. With the release of the new guidelines, employers face a broader definition of each element of the retaliation claim; thus the increasing momentum of retaliation claims will likely continue.  

Employers should find the new guidelines’ effect on the first element – participation in protected activity, most alarming. Under the new guidelines, element one now encompasses not only the “protected activity” language, but it also provides for protection from “opposition activity.” Through the new “opposition activity” language, an employee’s passive inaction to others’ expressed opposition to discriminatory practices is protected. This may become applicable to managers, human resource officers, or other EEO advisors that do not report or discipline their subordinate’s refusal to adhere to a policy or assignment based upon the subordinates’ belief that such policy or assignment violates the discrimination laws. 

This inaction or passive action by management can be protected regardless of whether the underlining policy actually violates any discrimination laws.  Through the inclusion of inactivity in this broadened definition, employers are even exposed to “anticipatory retaliation” claims. These claims would apply to policies that threaten discipline for engaging in protected activity or that otherwise deters participation in protected activities.  

Ultimately, with these new guidelines, it is important to employers to be proactive. Employers should ensure their Employee Handbooks and company policies are in-line with the new guidelines. Additionally, employers should ensure all personnel are properly trained on these new developments. Remember, that there is no specific language that an employee must use to invoke protection, thus all training should include understanding on how to identify when an employee may be invoking protections under federal law. Follow the link for the full update EEOC Enforcement Guide on Retaliation and Related Issues. https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm#_ftnref53

For specific guidance and assistance with any of these changes or other employment law concerns feel free to contact Robert A. Luskin at rluskin@gm-llp.com. 

Goodman McGuffey Lindsey & Johnson, LLP announces that one of its founding partners, Edward Lindsey, is leaving his litigation practice at the firm to pursue lobbying and public policy work. Edward previously served in the Georgia House of Representatives for 10 years, the last four of which he served as the Majority Whip before leaving his seat in 2014.

Managing partner Wade McGuffey said, “We regret losing Edward but are happy that he is pursuing his passion in working on public policy which he developed in his decade of service in the General Assembly.”

Edward Lindsey commented, “While I am excited about my career change, I am saddened to leave this great litigation firm. From its beginning in 1990, the firm has now grown to eight offices in four states from Sarasota to Raleigh and has become a regional leader in representing and defending companies, small businesses, professionals, insurance carriers, and employers in a wide variety of litigation matters. I am proud of what the firm has accomplished and look forward to continuing the lifelong friendships with those at the firm. I am confident that the foundation we built over the last 25 years will support the continued success of the firm.”

With the departure of Edward Lindsey, the firm will change its name to Goodman McGuffey LLP effective July 15, 2016.

Goodman McGuffey LLP, founded in 1990, is a mid-sized civil and commercial litigation firm with offices in Atlanta and Savannah, Georgia; Orlando and Sarasota, Florida; Charlotte and Raleigh, North Carolina; and Charleston and Columbia, South Carolina.

We reported last July on the Georgia Court of Appeals’ decision in Barnes v. Roseburg Forest Products Co., 775 S.E.2d 748 (2015), in which the appeals court essentially held that the statutes of limitation for change in condition and fictional new injury cases did not apply to catastrophically injured employees. On June 6, 2016, the Georgia Supreme Court, in a unanimous opinion, reversed the court of appeals on both issues.

The facts of this case played out as follows: Willie Barnes sustained a traumatic work injury in 1993 which resulted in a below-the-knee amputation.  Roseburg Forest Products (“Roseburg”) accepted the claim as catastrophic and began paying TTD benefits.  In 1994, after Mr. Barnes began walking with a prosthesis, he returned to work at Roseburg, and the carrier suspended TTD benefits.

Mr. Barnes continued working for Roseburg until September 2009 when he, along with many others, was laid off.  In 2012, Mr. Barnes filed a workers’ compensation claim seeking recommencement of TTD benefits under two different theories: (1) he initially sought benefits under the original 1993 date of injury due to a “change in condition;” and (2) he later filed another Request for Hearing alleging a “fictional new injury” as of the date of his termination in 2009.

The Administrative Law Judge denied both the change in condition and fictional new injury claims finding they both were barred by the applicable statutes of limitation.  The Appellate Division of the State Board affirmed, as did the superior court.  The court of appeals, however, in a surprising decision, reversed, holding that neither of Mr. Barnes’ claims was barred by the statutes of limitation.  The Georgia Supreme Court rarely hears workers’ compensation cases but granted certiorari here.

O.C.G.A. § 34-9-104(b) provides a two-year statute of limitation for claims for benefits based on a change in condition. Without any citation to controlling authority, the court of appeals last summer held that the Georgia Legislature intended to treat catastrophically injured workers differently than those workers whose injuries were not designated catastrophic. The court of appeals’ decision essentially allowed a catastrophically injured employee to receive benefits indefinitely, regardless of how long it had been since the employee received either TTD and/or TPD benefits from the employer and insurer.

The court of appeals seemed to base its decision on the fact that Mr. Barnes’ injury was designated catastrophic, and that the catastrophic designation had never been formally removed by the State Board following Mr. Barnes’ return to work after the accident, regardless of the fact that Mr. Barnes worked for several years thereafter.

With regard to Mr. Barnes’ fictional new injury claim, the court of appeals held that Roseburg’s provision of medical treatment in 2011, the most recent time Mr. Barnes received a new prosthetic leg, tolled the one-year “all issues” statute of limitations under O.C.G.A. § 34-9-82(a).

In Roseburg Forest Products Co. v. Barnes, Case Nos. S15G1808 and S15G1811, the Supreme Court reversed both of the court of appeals’ rulings.  First, with regard to Mr. Barnes’ claim that he was entitled to receive income benefits for a change in condition based on the fact his 1993 injury remained designated as catastrophic, the Supreme Court held that, regardless of his having the right to receive weekly benefits for his catastrophic injury, O.C.G.A. § 34-9-104(b) makes clear that in order for an employee to enforce that right, he must make a claim for those benefits within two years of the last weekly TTD and/or TPD benefits payment.  Because Mr. Barnes filed his claim sixteen (16) years after he last received TTD benefits, his claim for recommencement of TTD benefits based on a change in condition was time-barred.

With regard to Mr. Barnes’ fictional new injury claim, the Supreme Court held it also was time-barred.  The fictional new injury claim was based on a September 11, 2009 date of accident (the day after his layoff took effect).  Mr. Barnes received remedial treatment in November 2009, which would have extended the time period for him to file a fictional new injury claim until November 2010, but he did not file until November 2012.  Moreover, the Supreme Court held the treatment provided in December 2011, when he received a new prosthetic leg, which the court of appeals found tolled the statute of limitation, did not revive Mr. Barnes’ claim because it was already time barred as of November 2010, a year after he had last received treatment.

This is an important decision and a victory for employers and insurers.  The Georgia Court of Appeals decision last summer was akin to legislation from the bench.  The Georgia Supreme Court has now reminded the Georgia Court of Appeals that its job is to interpret the statutes as the legislature enacted them.  The Georgia Supreme Court stressed in its opinion that there is a need for closure and finality in workers’ compensation cases, as in all cases, and had the legislature intended to create different limitations periods for catastrophic versus non-catastrophic claims, it would have done so.  As a final aside, nothing in either the court of appeals or the Supreme Court’s rulings had any impact on Mr. Barnes’ right to continue to receive reasonably required medical treatment.

If you have any questions regarding this change and/or any other issues, please feel free to call me or any other member of the Workers’ Compensation team at Goodman McGuffey LLP.

David Havlicek will participate in a panel discussion, “Justice Delayed is Justice Denied: Avoiding Delay from Claim Filing to Resolution” at the SAWCA 68th Annual Convention in Destin, FL on July 27, 2016. The panel, moderated by GA State Board Chair, Frank McKay, also includes Judge Shannon Bruno Bishop of Louisiana, and Texas Commissioner Ryan Brannan with claimant’s attorney Trey Underwood of Albany, GA who will explore best practices for identifying and resolving issues that result in the delay of workers’ compensation benefits.

David M. Havlicek is the managing partner on the firm’s FL workers’ compensation team located in the Orlando office. He represents large self-insured, as well as insurers, and practices workers’ compensation throughout Florida. He is a member of the Florida Bar Workers’ Compensation Section and has defended employers and insurers in workers’ compensation for fifteen years.

Born in Chicago, Illinois in 1968, he attended the University of Central Florida, where he was a pre-law major, and graduated in 1993. He graduated from Nova Southeastern School of Law in 2000, after a management-track career with Publix Supermarkets in the interim. He is a member of the Sarasota Bradenton Claims Association, for which he was a three term President and Vice President for one year.More information regarding the convention and presentations is available here (http://sawca.com/wp-content/uploads/2016/06/2016-68th-Annual-Convention-Brochure-June-17-2016.pdf) . David can be reached at dhavlicek@gm-llp.com or (407) 937-4205.

Featured In This Article:

David M. Havlicek

Partner

Orlando Office

We reported a few weeks ago that the 2016 Georgia General Assembly passed three bills revising portions of the Georgia Workers’ Compensation Act: House Bill (“HB”) 818, HB 402, and HB 216. With most revisions to the Workers’ Compensation Act, the General Assembly is usually voting to approve changes that come from the Chairman’s Advisory Council. As a result, they are usually signed by the Governor.  Interestingly, there was much more debate than usual on the firefighter issue, and on May 3, 2016, Governor Nathan Deal vetoed HB 216.

HB 216 was enacted to amend O.C.G.A. § 34-9-280, the occupational disease statute, in order to allow firefighters, the opportunity to pursue and to receive workers’ compensation benefits if they have been diagnosed with cancer. As originally proposed, the bill would have provided a presumption to firefighters for certain listed diseases. However, that version did not have enough support. A compromise effort shifted the presumption to a preponderance of evidence, limited the scope of diseases to cancer, and applied only to firefighters. In the Senate Insurance Committee, and on the Senate floor debate, there was an effort to expand the scope of the exception to all employees (not just firefighters), to all diseases (not just cancer), but with a higher standard of proof of clear and convincing evidence. That also did not have enough support, so the carve-out exception ended up being limited to firefighters, to cancer, and the proof being by a preponderance of the evidence. 

Governor Deal stated, “Firefighters play an integral role in keeping Georgians safe, their unselfish everyday sacrifice does not go unnoticed by this office and they will continue to have my support. However, while the authors’ intent of this bill is respected, I am concerned that codifying an exception for one occupation at this relatively low standard of proof with no time limitation on diagnosis or restriction on eligible types of cancer is a broad solution for a problem not yet abundantly demonstrated in Georgia. The Association County Commissioners of Georgia have also expressed concern that the shift in this burden of proof may potentially lead to tremendous uncertainty in projecting the future financial liability for workers’ compensation. Similarly, the Georgia Municipal Association is concerned that HB 216 makes no distinction between paid and volunteer firefighters. Paid employees are automatically granted workers’ compensation coverage, while cities and counties must affirmatively vote to include volunteer firefighters in their coverage. Finally, since I took office, I am unaware of any firefighter that has filed a workers’ compensation claim for a cancer diagnosis. Signing this bill into law has the potential to exhaust our State Board of Workers’ Compensation and our state judicial system with litigation at the expense of our cities and counties. For these reasons, I VETO HB 216.”

Until HB 216 passed in April, cancer had always been considered an ordinary disease of life, which was excluded from coverage as an occupational disease under O.C.G.A. § 34-9-280(d). The added language would have provided an exception for firefighters. The exception specifically allowed a firefighter to secure workers’ compensation benefits upon showing by a preponderance of evidence, including medical evidence, that a cancer diagnosis is attributable to the firefighter’s performance of his or her duties as a firefighter. While House Bills 818 and 402 will take effect on July 1, 2016, the status quo remains in place for firefighters.

If you have any questions regarding this change and/or any other issues, please feel free to call me or any other member of the Workers’ Compensation team at Goodman McGuffey LLP.

A few weeks ago, the 2016 session of the Georgia General Assembly closed, passing three bills that revise portions of the Georgia Workers’ Compensation Act: House Bill 818, House Bill 402, and House Bill 216. All of the changes in the law take effect on July 1, 2016.

1. Change in Benefit Rates

House Bill 818 increased the maximum amount of both Temporary Total Disability (TTD) and Temporary Partial Disability (TPD) benefits. For all accidents occurring on or after July 1, 2016, the new maximum TTD rate is $575.00 per week. The new maximum TPD rate is $383.00 per week.

2. Change in Death Benefits

House Bill 818 also amended O.C.G.A. § 34-9-265(d) to increase the maximum compensation payable to a surviving spouse as a sole dependent at the time of the employee’s work-related death from $220,000 to $230,000.00 for deaths occurring on or after July 1, 2016.

3. Changes in qualifications for self-insured status and the Self-Insured Guaranty Trust Fund

House Bill 818 also clarified the State Board’s authority to grant or deny self-insurance status based upon the applicant’s exposure, liability, and financial ability to pay. This bill was enacted to clarify which applicants are truly qualified for coverage under the Georgia Self-Insurers Guaranty Trust Fund in the event of insolvency and to achieve consistency in the definition of certain terms.

O.C.G.A. § 34-9-121(a) was revised to state a self-insured employer must “provide the board with sufficient information for the board to make an adequate assessment of the employer’s workers’ compensation exposure and liabilities and shall further provide evidence satisfactory to the board of such employer’s financial ability to pay the compensation directly in the amount and manner and when due.”

Revisions to O.C.G.A. § 34-9-381 further clarified the definitions relative to the Self-Insurers Guaranty Trust Fund. These new definitions include the exclusion of Professional Employment Organizations (PEOs), Assigned Staffing Organizations (ASOs), or similar entities from the definition of “self-insurers” to the extent such organizations would not qualify for acceptance into the Self-Insured Guaranty Trust Fund.

4. Encouragement of Work-Based Learning Program

House Bill 402 was enacted to encourage employers to provide work-based learning opportunities for students 16 and older. So far, the program has been a success in preparing students who not acquire post-secondary education into the workforce. Effective July 1, 2016, pursuant to O.C.G.A. § 34-9-40.3, certification as a work-based learning employer, and notification of such certification to the insurer provides for an optional premium reduction of up to five (5) percent. The premium discount provided is applied pro rata as of the date the insured receives such notification and shall continue as long as the insured maintains certification.

House Bill 402 also amended the Workers’ Compensation Act to add new code sections under O.C.G.A. § 34-9-2.4, O.C.G.A. § 34-9-430, and O.C.G.A. § 34-9-431 to further define “work-based learning placement,” a “work-based learning student,” and a “work-based learning employer.” A work-based learning employer must enter a training agreement with one or more work-based learning student(s), develop a training plan in conjunction with a school’s work-based learning coordinator, assign a mentor to the work-based learning student, and provide workers’ compensation insurance for the work-based learning student. Under an associated revision to O.C.G.A. § 34-9-432, self-insured employers can qualify for the premium discount if they comply with O.C.G.A. § 34-9-431, and all other provisions of the article.

5. Right to compensation for firefighters diagnosed with cancer

House Bill 216 was enacted to amend O.C.G.A. § 34-9-280, the occupational disease statute, in order to allow firefighters, the opportunity to pursue and to receive workers’ compensation benefits if they have been diagnosed with cancer. As originally proposed, the Bill would have provided a presumption to firefighters for certain listed diseases. However, that version did not have enough support. A compromise effort shifted the presumption to a preponderance of evidence, limited the scope of diseases to cancer, and applied only to firefighters. In the Senate Insurance Committee, and on the Senate floor debate, there was an effort to expand the scope of the exception to all employees (not just firefighters), to all diseases (not just cancer), but with a higher standard of proof of clear and convincing evidence. That also did not have enough support, so the carve-out exception that will become law on July 1, 2016 is limited to firefighters, to cancer, and by a preponderance of the evidence.

Cancer was previously considered an ordinary disease of life, which was excluded from coverage as an occupational disease under O.C.G.A. § 34-9-280(d). The added language, however, provides an exception for firefighters. This exception specifically allows a firefighter to secure workers’ compensation benefits upon showing by a preponderance of evidence, including medical evidence, that a cancer diagnosis is attributable to the firefighter’s performance of his or her duties as a firefighter.

Summary

With most revisions to the Workers’ Compensation Act, the General Assembly is usually voting to approve changes that come from the Chairman’s Advisory Council.  Interestingly, there was much more debate than usual on the firefighter issue.

If you have any questions regarding these changes and/or any other issues, please feel free to call me or any other member of the Workers’ Compensation team at Goodman McGuffey LLP.

In 2011, we alerted you to an attempt by the plaintiff’s bar to expand automobile damage diminished value class actions to real property claims.  It began when in 2010 when then Commissioner Oxendine issued Georgia Insurance Commissioner’s Directive 10-EX-1 during his race for governor.  He directed the insurance industry as follows:

[B]arring specific policy language to the contrary, a liable party must restore a [real] property owner to the same position as the property owner was in prior to a loss.  In some cases, even with repair of the property, it is possible that the property may be worth less after the loss than it was prior to the loss.

In 2012, we alerted you to plaintiffs’ attorneys who were exploring class action claims similar to those we defended in the automobile diminished value cases.  That time has come.

On March 9, 2016, the U.S. District Court for the Middle District of Georgia certified a class of homeowners, allowing them to pursue a class action against their insurer, State Farm Fire & Casualty Company, for State Farm’s alleged failure to assess diminished value on townhomes that suffered water damage.  Thompson v. State Farm Fire & Casualty Company, 2016 U.S.Dist. LEXIS 30308 (M.D. Ga. March 9, 2016.) This class action is one of a series of attempted class actions that arose post Royal Capital Development LLC v. Maryland Casualty Company, the 2012 Georgia Supreme Court case which held that diminished value could be recovered under property policies as it had been in Georgia under auto policies since State Farm Mutual Auto Insurance Company v. Mabry, 474 Ga. 498, was decided in 2001.

The homeowners in Thompson sought to certify two subclasses based on the date when the first party’s claims for property damage were submitted, those from January 22, 2013 to the present (within the one year contractual limitations period found in the State Farm policies) and those with claims submitted from January 22, 2008 and January 21, 2013 (outside of the one year contractual limitations period). The Court refused to subdivide the class but certified the undivided class as to its claims related to State Farm’s failure to assess diminished value for damage to real property. The class was not certified to address whether or not diminished value was recoverable or due under the policies.  An insurer that assesses diminished value but, for example, determines diminished value is not due or recoverable under a policy would be in a different position than State Farm in this case.

Judge Marc T. Treadwell initially denied certification of a class in 2015 because of pleading deficiencies. The plaintiffs’ attorneys were later able to craft the current class action complaint by limiting the class to homeowners who had made water damage claims.  This success will embolden both these lawyers and others to pursue claims.  With water damage representing approximately 25% of property claims, the exposure can be substantial.

It will be interesting to see in the coming months how the Court addresses the seemingly limited damages for failure to assess diminished value in water damage cases. Please contact us if you would like assistance in addressing these diminished value claims or in altering policy language to exclude such potential claims.

Featured In This Article:

Stephanie F. Glickauf

Partner

Atlanta Office

Robert M. Darroch

Partner

Orlando Office

Attorney Cathi Carson-Freymann of our Sarasota office has been nominated for SRQ Magazine’s 2016 Women in Business Awards. The nominees include women leaders who are making positive impacts in businesses throughout the Sarasota and Bradenton areas. These women work in industries from non-profit, to science and technology, to law, to education, and more.

SRQ Magazine is a monthly publication that engages over 78,000 readers on a variety of topics in business and lifestyle along the Gulf Coast. More information about the SRQ Women in Business Initiative is available at www.srqhearmeroar.com.

Cathi joined Goodman McGuffey LLP as a partner last year. Her areas of practice include all aspects of insurance and general liability defense, including personal injury defense, premises liability, automobile liability, and insurance coverage disputes. She also has extensive experience with intellectual property litigation, including trademark prosecution and domain name dispute resolution.

Cathi can be contacted at (941) 806-2984 or ccarson@gm-llp.com

We are proud to announce that seven of our attorneys have been recognized as 2016 Super Lawyers or Rising Stars. Bill Goodman, Adam Joffe, Edward Lindsey, Robert Luskin, Wade McGuffey, Peter Muller, and Josh Stein have all been recognized as outstanding lawyers throughout the past year.

These recognitions create some milestones:

Edward Lindsey – 13th Year as a Super Lawyer

Wade McGuffey – 12th Year as a Super Layer

Bill Goodman – 12th Year as a Super Lawyer

Robert Luskin – 9th Year as a Rising Star

Peter Muller – 7th Year as a Super Lawyer

Adam Joffe – 5th Year as a Rising Star

Josh Stein – 4th Year as a Rising Star

Super Lawyers are selected through a combination of peer nominations, evaluations by third party researchers, and peer evaluations by practice area. For more information on the selection process, please click here. https://www.superlawyers.com/about/selection_process.html

Congratulations to these talented attorneys!

Featured In This Article:

C. Wade McGuffey, Jr.

Founding Partner

Atlanta Office, Orlando Office

William S. Goodman

Founding Partner / Of Counsel

Atlanta Office

Peter D. Muller

Partner

Savannah Office

Adam C. Joffe

Partner

Atlanta Office

On February 15, 2016, the Georgia Court of Appeals issued a ruling that an employee’s death at work did not “arise out of” his employment. In Sturgess v. OA Logistics Services, the appeals court reversed the trial court’s grant of summary judgment to the employer and temporary staffing agency holding that the risk of the random attack was no more heightened at the decedent’s workplace than at any other place.

Nickifor Zephyrine was a forklift operator who was placed at OA Logistics Services (“OA”) by temporary staffing agency Staffchex.  On February 24, 2012, Zephyrine’s forklift ran out of fuel. He went to inquire with the supervisor about refueling. As he waited outside the supervisor’s office with his back turned, another temporary employee, Christopher Lema, entered the office and attempted to kiss a female co-worker. She immediately pushed him off. Lema stepped out of the office, produced a handgun, shot Zephyrine in the back of the head, re-entered the office, and sexually assaulted the female employee. Zephyrine was not aware of the assault, had not attempted to intervene, and had not interacted with Lema before that occasion.

Maria Sturgess, Zephyrine’s mother, sued OA, Staffchex, and Lema. OA and Staffchex moved for summary judgment, which the trial court granted on the ground the Exclusive Remedy Provision of the Georgia Workers’ Compensation Act barred the civil suit against them. Sturgess appealed that ruling arguing that Zephyrine’s injury did not arise out of and in the course of employment, and therefore, should have been allowed to proceed.  The court of appeals agreed with Sturgess.

Because Zephyrine was on duty performing his job functions at his employment location, there was no question the death occurred in the course of his employment. The analysis by the court of appeals focused on whether it arose out of the employment. The court of appeals stated that death arises out of employment when there exists, “a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, “if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment.”

The court confirmed it is a highly fact-specific analysis particular to the circumstances of each case. In this case, the court found there was no evidence of any connection between the attack and Zephyrine’s workplace. Zephyrine’s work did not require him to be in a location that heightened his risk of injury or criminal attack. The court also found there was no evidence that Zephyrine and Lema had any work-related dispute that escalated into the violence.

The temporary staffing agency tried to argue that the killing nevertheless arose out of Zephyrine’s employment under the positional risk doctrine. The court of appeals dismissed that argument as well stating that, “under the doctrine, an injury is not considered connected to the workplace if it is ‘a risk to which the employee would have been equally exposed apart from the employment, and therefore the injury was not related to or caused by the peculiar nature of a condition of the employment.’”

With that backdrop in mind, the court stated that in cases where employees are injured while traversing dark parking lots or high crime areas because of their employment, it makes sense that resulting injuries are connected to their employment, even if caused by third-party criminal acts. The court contrasted this case from others where the Exclusive Remedy Provision precluded a civil suit by finding there was no high-crime element to the particular workplace locale, nor was there any discernible risk of theft or robbery associated with this workplace. The risk of a random attack was no more heightened at Zephyrine’s workplace than at any other place.

The court’s decision in this case, although a fact-specific analysis particular to this case, seems to make it more difficult for an employer to defend a civil suit resulting from the criminal act of a third-party which occurred at work under the Exclusive Remedy Provision of the Workers’ Compensation Act. It seems that as long as the act did not occur in a high-crime locale, the courts may have to find it did not arise out of employment. The result could be several more civil suits being allowed to proceed against employers where the employee was injured by a third-party while at work.