Brasher v. U.S. Xpress Enters., Inc.

• Citation: 761 S.E.2d 448,328 Ga.App. 20
• Decision Date: 08 July 2014
• Docket Number: No. A14A0597.,A14A0597.
• Court: Georgia Court of Appeals
• Parties: BRASHER v. US XPRESS ENTERPRISES, INC.

328 Ga.App. 20

761 S.E.2d 448

BRASHER

v.US XPRESS ENTERPRISES, INC.

No. A14A0597.

Court of Appeals of Georgia.

July 8, 2014.

Ronald Clyde Conner, Atlanta, for Appellant.

David Harold White, Atlanta, Christopher Allen Quin IV, for Appellee.

MILLER, Judge.

Ronald Brasher was injured during the course of his employment with U.S. Xpress Enterprises (“US Express”) and filed a claim for workers' compensation benefits. Following a hearing, an administrative law judge (“ALJ”) of the State Board of Workers' Compensation (the “Board”) awarded Brasher temporary total disability (“TTD”) benefits for the period between March 21, 2012 and April 5, 2012; denied Brasher additional benefits based on his refusal of light-duty work; appointed a treating physician; and ordered U.S. Express to pay for treatment. After the Appellate Division of the Board adopted the ALJ's award, Brasher appealed to the superior court. As a result of the superior court's failure to enter a timely decision, the Appellate Division's award was affirmed by operation of law.¹ See OCGA § 34–9–105(b). We granted Brasher's application for discretionary appeal.

On appeal, Brasher contends that: (1) he was entitled to choose his own physician rather than have one appointed for him and have the expenses paid for by U.S. Express because it failed to conform to OCGA § 34–9–201(c) and (f); (2) the Board erred in finding that the light-duty job that he was offered was suitable and that his reasons for refusing the job were unjustified; (3) the Board erred in failing to award additional TTD benefits; (4) the Board erred in failing to assess a 15 percent late penalty; and (5) the Board violated his due process and equal protection rights. For the reasons that follow, we affirm in part and reverse in part.

On appeal from an award of the Appellate Division of the State Board of Workers' Compensation, this Court examines the record to see if there is competent evidence to support the award and construes the evidence in a light most favorable to the prevailing party. Further, it is axiomatic that the findings of the State Board of Workers' Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this Court has any authority to substitute itself as a fact finding body in lieu of the Board.

(Citation and punctuation omitted.) Ready Mix USA, Inc. v. Ross, 314 Ga.App. 775, 726 S.E.2d 90 (2012). “However, erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to the de novo standard of review.” (Citation omitted.) Renu Thrift Store, Inc. v. Figueroa, 286 Ga.App. 455, 456, 649 S.E.2d 528 (2007).

So viewed, the evidence shows that Brasher began working as a long-haul truck driver for U.S. Express on July 15, 2010. On March 18, 2012, Brasher left the U.S. Express terminal in Atlanta and drove to Rome to pick up a load. Brasher was turning a steel crank in order to connect his truck to a pre-loaded trailer when a leg of the trailer lowered suddenly, causing the crank to spin and strike him about the chest, back, neck and head. Brasher was taken by ambulance to Floyd Medical Center's emergency room, where he was examined and released to return to work with directions to see a doctor within 24 hours. After being discharged, Brasher drove to the U.S. Express terminal in Atlanta. When he arrived in Atlanta, the fleet manager told Brasher to talk to the terminal site manager if he needed further medical care. The next morning, Brasher complained of numbness in the arms and face to U.S. Express's workers' compensation analyst Penny Norris and asked for medical treatment. Norris advised that “due to the E.R. records I had which gave him no follow up and cleared him, I couldn't do anything further.” Norris further stated that the claim had been turned over to the company's insurer and gave Brasher contact information so that he could follow up with the insurer. That same day, Brasher went to an urgent care center but received no treatment.

On March 21, 2012, Brasher went to and was treated at an urgent care center in Atlanta, and was diagnosed with a cervical strain, contusions of the thorax, face, scalp, and chest wall, and neuropathy in his face and upper arm. The doctor prescribed Brasher pain medication and placed him on modified work activity, including restrictions on driving, reaching, squatting, lifting or pushing more than five pounds, and prolonged walking or standing. The urgent care doctor urged Brasher to contact the ER if his condition worsened and to consider “ortho or neuro after [his] next visit.” Brasher returned to urgent care on March 23, 2012. Following an examination, the doctor continued Brasher's work restrictions, including no lifting, pushing, or pulling of any weight, no reaching above the shoulders, no squatting or kneeling, and no prolonged standing or walking. Brasher was also given an urgent referral to see an orthopedic surgeon due to decreased upper extremity strength. Brasher returned to urgent care on March 27, 2012, and he was further ordered to limit the use of his arms. On April 3, Brasher visited an urgent care center in Columbus and his work restrictions were continued.

Brasher then returned home to Opelika, Alabama because he had been sleeping in a lounge chair at the U.S. Express terminal. Thereafter, U.S. Express offered Brasher a light-duty position at their terminal in Tunnel Hill. On or about April 5th, 2012, U.S. Express provided Brasher with a bus ticket to Tunnel Hill. When Brasher reported to work, he asked his site manager and, later, Norris for a $25 advance to purchase food to take with his medications. Brasher's requests were refused. After approximately five hours of work, Brasher told the site manager that he was not going to stay on the job and “starve to death.” Brasher was given a bus ticket home after signing a form declining the job due to financial reasons. Brasher has not worked since April 9, 2012, although the light-duty job remains available to him.

Brasher filed a notice of claim with the Board on May 17, 2012, seeking temporary total disability benefits starting on March 18, 2012, authorization for medical treatment, and attorney fees and penalties.²

After filing his notice, Brasher made several more visits to urgent care. After a July 12, 2012 follow-up, the urgent care doctor requested, but did not obtain approval for, an MRI. Brasher also saw Dr. Empting of the Independent Neurodiagnostic Clinic in April 2012, and Dr. Empting diagnosed Brasher with a host of spinal problems and limited him to sedentary activity. Brasher visited Dr. Empting a few more times with no change in his restrictions.

In September 2012, Brasher saw Dr. Dorchak, his former orthopedic surgeon. Dr. Dorchak diagnosed cervical and thoracic strains and recommended MRIs to rule out disk herniation and an occult fracture. Dr. Dorchak released Brasher to sedentary duty.

After a hearing on September 25, 2012, the ALJ concluded that: Brasher was entitled to receive income benefits from March 21, 2012 through April 5, 2012; Brasher was not entitled to further benefits because the light-duty job assigned to him after his injury was appropriate, the job remained available, and Brasher's reasons for quitting were not credible; and U.S. Express was obligated to provide Brasher with medical treatment for his injuries, including medical treatment provided by Dr. Dorchak whom the ALJ appointed as an authorized treating physician. The ALJ declined to award fees, concluding that both parties had presented colorable arguments to support their claims.

Brasher appealed the ALJ's decision to the Board, which adopted the ALJ's findings of fact and conclusions of law. Brasher then appealed this decision to the superior court, which conducted a hearing. The superior court did not issue an opinion within 20 days of the hearing, and thus the Board's decision was affirmed by operation of law. OCGA § 34–9–105(b), (d).

1. Brasher contends that the Board erred in affirming the ALJ's decision to appoint Dr. Dorchak as a treating physician for him, because the relevant statutes authorized him to select his own physician based on U.S. Express's failure to provide timely medical care or to post a panel of authorized physicians. We agree.

OCGA § 34–9–200(a) requires an employer to furnish the injured employee with medical treatment that is reasonably required, and OCGA § 34–9–201(b)(1) allows the employer to satisfy that requirement by maintaining a list of six physicians from which an employee may accept services. Under OCGA § 34–9–201(c), an employer is required to post a panel of physicians in a prominent place and ensure that employees understand the function of the panel and their right to choose a doctor from that list in the event of an on-the-job injury. If the employer fails to provide any of the procedures for selection of physicians as set forth in OCGA § 34–9–201(c), an employee may select any physician to render service at the expense of the employer. OCGA § 34–9–201(f).

Here, there is no evidence in the record that U.S. Express posted a panel of physicians, gave Brasher appropriate assistance in contacting a physician on the panel, or informed Brasher of his right to select a panel physician following his injury. Rather, when Brasher contacted U.S. Express's workers' compensation analyst the day after his injury, the analyst offered Brasher no assistance. Moreover, Brasher was turned away from attempts to receive treatment from urgent care and from his general practitioner because his injuries were work related. Since U.S. Express did not follow the procedures for the selection of physicians as set forth in OCGA § 34–9–201(c), Brasher was entitled to choose his treating...