Cornell-Young (Macon Pre-Stressed Concrete Co.) v. Minter

• Decision Date: 06 October 1983
• Docket Number: PRE-STRESSED,CORNELL-YOUNG,No. 66142,66142
• Parties: (MACONCONCRETE COMPANY) et al. v. MINTER.
• Court: Georgia Court of Appeals

Page 159

309 S.E.2d 159

168 Ga.App. 325

CORNELL-YOUNG (MACON PRE-STRESSED CONCRETE COMPANY) et al. v. MINTER.

No. 66142.

Court of Appeals of Georgia.

Oct. 6, 1983.

H. Michael Bagley, Atlanta, for appellants.

A.J. Welch, Jr., McDonough, for appellee.

QUILLIAN, Presiding Judge.

Cornell-Young, the employer, and its insurance company, Maryland Casualty Co., appeal the judgment of the trial court reversing the award of the State Board of Workers' Compensation.

The appeal arose from the following facts: On September 8, 1980, Johnny Minter, the claimant, injured his back while lifting "side railing" while in the employ of Cornell-Young. He missed two days of work--that day and the day following--and subsequently on October 20, 1980, and for an extended period was unable to work. On October 31, 1980, the employer filed with the Board a Notice of Payment of Benefits (Form WC 2) that benefits would begin as of October 25, 1980--after the expiration of the seven-day waiting period provided in OCGA § 34-9-220 (former Code Ann. § 114-401). At the same time a Form WC 1--Employer's First Report of Injury --was filed. This form set out the date employer was first aware of the injury as "9-8-80." Then, on November 10, 1980 the employer filed another Form WC 2 this time as a Notice of Suspension of Benefits setting forth that benefits were suspended on November 3, 1980, for the reason that "employee returned to work 11-3-80."

It appears that claimant did return to work on November 3, 1980, with a slip from his doctor which read: "Johnny Minter has been under my care from 10-28-80 to present and is able to return to work on 11-3-80." For "about a week and a half or two weeks" the claimant did light work and then began normal duties. Claimant's immediate supervisor stated that claimant "told his superintendent that the doctor said for him to go on light duty, so we put him on light duty work." He added that it was a general practice to put anyone who had been injured on light duty. He then testified "after two weeks and the doctor released him, we put him back on normal duty."

On November 21, 1980, the claimant's employment was terminated. According to the witnesses for the employer the termination resulted from a cut back of the employer's work force. The claimant testified once he returned to normal work his back began hurting and his condition worsened to the point where he could no longer perform such duties. He further testified he told his supervisor about this shortly before his employment ended. There was testimony that afterwards the claimant was incapacitated for a period of time; that he then began doing "light work", such as odd jobs not involving any heavy lifting; that he was unable to obtain employment such as that he engaged in before he was injured; that he continued to visit doctors, complaining of back pain.

When this case came on for hearing before the ALJ, he ruled that, since the employer had not timely filed the required forms in that the Form WC 2-- Suspension of Payment --failed to include medical reports or to show that the claimant had returned to work without restriction, the burden was on the employer/insurer to show a change of condition. In the award issued subsequently the ALJ found: "Employer/insurer has failed to show by a preponderance of the evidence that claimant underwent a change in condition as contemplated by Code Section 114-709 et seq., as amended July 1, 1978. On the contrary, employer/insurer's medical exhibits ... confirm Dr. Naidu's opinion that claimant's knee and back condition could arise periodically from claimant's back injury of September 8, 1980, and corroborates the existence of 'low back pain and bilateral leg intermittent pain and numbness induced by a suspected herniated lumbar disc.' " The award as issued found the claimant was entitled to benefits and imposed penalties as well as attorney fees. On review by the Full Board, that body found: "the claimant had returned to work when benefits were terminated as of November 3, 1980. The burden of proof was upon the claimant. Any economic loss after being laid off in November is not shown by the preponderance of evidence to be attributable to work-related injury." The Board therefore denied the claim of the employee-claimant for income benefits.

Appeal was taken by the claimant to the Clayton Superior Court. The trial judge reversed the Board on two grounds: 1) that the Form WC 2 was not accompanied by a medical report resulting in an improper termination which placed the burden of proof on the employer/insurer to show a change of condition, 2) that, even if the burden were properly on the claimant, the original hearing was conducted with the burden on the employer/insurer and the claimant as respondent or defendant, and, as a result, the claimant was deprived of the opportunity to present evidence as a plaintiff. Held:

1. The first issue that presents itself is on whom did the burden of proof lie. This court by a series of recent decisions has made it clear that the failure to timely file certain forms or otherwise meet deadlines or procedural requirements are subject to the sanctions imposed by the code but do not effectuate an estoppel or cause a shift in the burden of proof. Raines & Milam v. Milam, 161 Ga.App. 860, 862, 289 S.E.2d 785; Holt Service Co. v. Modlin, 163 Ga.App. 283, 286, 293 S.E.2d 741; Kelley v. West Point Pepperell, 164 Ga.App. 187(2), 296 S.E.2d 191.

As a general rule, the burden is on the claimant to show his injury is compensable. Commercial Union Assn. Co. v. Couch, 143 Ga.App. 64, 65, 237 S.E.2d 528. As stated in Argonaut Ins. Co. v. King, 127 Ga.App. 566, 567, 194 S.E.2d 282: "[T]here is a general burden on the plaintiff to prove the essential elements of his claim, including the fact that the accident arose out of his employment." The employer has the burden when raising an affirmative defense, such as wilful misconduct. OCGA § 34-9-17 (Code Ann. § 114-105); Beck v. Brower, 101 Ga.App. 227(2), 113 S.E.2d 220. Where a change of condition was asserted, the burden of establishing this was on the party claiming such change under our former procedure. Fortson v. American Surety Co., 92 Ga.App. 625(2), 89 S.E.2d 671. This was true because the award of the board was res judicata and conclusive until superseded by a new award. Complete Auto Transit v. Davis, 101 Ga.App. 849, 115 S.E.2d 482; Hartford Accident, etc., Co. v. Webb, 109 Ga.App. 667(1), 137 S.E.2d 362.

Now, of course, under the recent law we have situations where payments are begun and discontinued, all without the approval or scrutiny of the State Board of Workers' Compensation. In such posture, we must determine whether in this case the burden should rest on the employee-claimant or the employer/insurer.

Since there is no final judgment, the question as to which party is actually seeking a change in condition is not readily ascertainable. However, an examination of the basic principles utilized formerly should serve as guideposts.

An apt precept to observe is found in Hiers and Potter, Ga. Workers' Compensation--Law and Practice, § 12-15, wherein it is stated on page 155: "The nature of the case dictates which party has the burden and goes forward with the evidence."

Counsel for claimant argues, with much justification, that the employer should not be permitted to cease payments by giving notice, force the employee to complain and seek a hearing and thereby impose the burden of proof on the employee to show that he is still disabled, that is--that no change in condition occurred. Certainly superficial factors should not be the measure or test. If an employer begins to make payments and continues over a period of time but then abruptly ceases those payments, the burden should not necessarily be on the employee to establish his entire case, but instead, even though the employee might request the hearing, the employer should have the burden of showing a change in condition to justify cessation of the payments. On the other hand, if after beginning to make payments, the employer timely files a Form WC 2 and a Form WC 3, a "Notice to Controvert Payment of Compensation," then certainly there are good reasons to place the burden on the employee to establish his claim since this is the initial hearing of the matter and not a change in condition.

Hiers and Potter, supra, have an excellent summation for situations closely akin to those in the case sub judice. They expound the law as follows: "If an employee has actually returned to work after having received compensation, and then alleges a further inability to work, then the burden of proof is upon that employee to show that he has undergone a change in condition. If, however, the employer and insurance carrier unilaterally suspend benefits based upon their allegation that the employee has the ability to return to work, then the burden of proof is upon the employer and insurance carrier to justify their suspension of benefits." Ga. Workers' Compensation § 23-6, p. 226. See as to these two situations, Employers Ins. v. Carnes, 148 Ga.App. 767, 252 S.E.2d 654; Peterson/Puritan, Inc. v. Day, 157 Ga.App. 827, 278 S.E.2d 674 and Sadie G. Mays Mem. Nursing Home v. Freeman, 163 Ga.App. 557, 295 S.E.2d 340.

We are cited valid authority under the former law that return...