Footstar, Inc. v. Stevens

• Decision Date: 01 September 2005
• Docket Number: No. A05A0883.,A05A0883.
• Parties: FOOTSTAR, INC. et al. v. STEVENS.
• Court: Georgia Court of Appeals

275 Ga. App. 329

620 S.E.2d 588

FOOTSTAR, INC. et al. v. STEVENS.

No. A05A0883.

Court of Appeals of Georgia.

September 1, 2005.

Robert Hardeman, Alpharetta, for Appellant.

Bert Slotkin, Andrea Mitchell, Edward Boshears, Richter, Head, Shinall & White, Atlanta, for Appellee.

MIKELL, Judge.

Footstar, Inc., d/b/a Meldisco Shoe-Mart ("Footstar"), and Travelers Insurance Company ("Travelers") appeal the judgment of the Superior Court of Glynn County affirming the decision of the Appellate Division of the State Board of Workers' Compensation (the "Board"). The appellants contend that the trial court erred in concluding that the claim of the injured employee, Felicia Stevens, was compensable as a change of condition, rather than as a new injury. For reasons explained below, we find no error and affirm the judgment of the trial court.

It is the law in this state that if there is any evidence to support a finding of the Workers' Compensation Board, the superior court may not reverse the award unless errors of law were committed. Moreover, in determining whether evidence in the case meets the "any evidence" rule, the evidence will be construed in the light most favorable to the party prevailing before the [B]oard and every presumption in favor of the Board's award is indulged.

(Citations omitted.) Calhoun v. Mergentine/KVN & Horn Fruin-Colnon, 165 Ga.App. 610-611(1), 302 S.E.2d 401 (1983).

So viewed, the record shows that Stevens began working for Footstar in May 1978. At the time of the injury in question, Stevens was the manager of a K-Mart store shoe department which was operated by Footstar. As part of her job, Stevens unloaded cases of shoes into overhead bins. Some of the cases weighed over 30 pounds. She testified that the counters were over 72 inches high, and that she was "constantly" working in the overhead areas. She was injured on November 8, 1999, while putting merchandise into an overhead bin, when several cases fell, hitting her head, neck, and shoulder.

Travelers was the workers' compensation insurance carrier for Footstar at the time of the injury. Travelers accepted Stevens's claim as "medical only," because she continued to work for Footstar.¹ According to Stevens, she was instructed to go to a medical clinic, where she was treated by Dr. Cindy Jurss. Travelers paid for the treatment. Stevens wished to continue working because she had two children to support, so Dr. Jurss "reluctantly" allowed her to continue at her regular job. Stevens had difficulty performing her work because of the injury. She testified that her district manager gave her a lot of leniency. According to Stevens, by 2001, she was unable to work a full eight-hour day. She used her vacation and sick leave "just to alleviate the aggravation" she experienced in her arm, neck, and shoulder.

On January 1, 2001, Liberty Mutual Insurance Company ("Liberty Mutual") replaced Travelers as Footstar's workers' compensation carrier. In August of that year, Travelers requested a hearing to determine which insurer was responsible for the cost of Stevens's continued medical treatment. The hearing took place on October 19, 2001, before Administrative Law Judge Jerome Stenger. In his award dated December 18, 2001, Judge Stenger made the following findings of fact: that Stevens had sustained a compensable injury on November 8, 1999; that she was not disabled because she continued to work for Footstar; and that Stevens had not sustained a new injury or had a new accident during Liberty Mutual's coverage. Judge Stenger concluded that Travelers was responsible for Stevens's continuing medical expenses. Travelers subsequently appealed, and on August 7, 2002, the appellate division adopted the award as its own.

After the hearing but before Judge Stenger had issued his award, Stevens's new physician wrote a note on November 30, 2001, specifying that Stevens should perform only light duty, with no lifting over 20 pounds and no overhead work. That note triggered Footstar's 30-day policy on light duty; however, the record before Judge Stenger had closed by that time. Gary Wetter, Footstar's corporate safety manager, testified that he expected Stevens to leave Footstar on December 28, at the expiration of the 30-day light duty period.

Wetter testified that he received Judge Stenger's award on or about December 21, 2001, and that he contacted Melodie Lemons at Travelers to discuss its ramifications. According to Wetter, Travelers was not prepared to take any action regarding Stevens at that time. Wetter testified that he told Lemons that Footstar would "keep [Stevens] on until after the holidays," which he explained referred to her employment in a light duty capacity. Wetter believed that Travelers would begin paying Stevens income benefits in January 2002.

Stevens's condition continued to deteriorate until she ceased working for Footstar on January 5, 2002. When Wetter learned that Travelers had refused to pay Stevens income benefits, Footstar began paying her out of the company's own workers' compensation budget as of January 5, because Wetter believed "it was the right thing to do." He testified that he believed either Travelers or Liberty Mutual, whichever insurer was determined to be responsible, would be required to reimburse Footstar. Footstar paid Stevens $329.92 per week through May 2003.

Stevens filed a Form WC-14 requesting income benefits on October 6, 2002, and requests for hearings on April 22 and on June 17, 2003, and Judge Stenger held a hearing on October 31, 2003, to determine whether she was entitled to income benefits and, if so, which insurance carrier was responsible for any such benefits. In an award dated December 24, 2003, Judge Stenger adopted his December 18, 2001, award and again concluded that Stevens had suffered a compensable injury on November 8, 1999. He found that the change in condition two-year statute of limitation, OCGA § 34-9-104(b), did not apply because Travelers had never paid income benefits to Stevens. Judge Stenger concluded that if the claim was not a change in condition, then a fictional new accident had to be established. Accordingly, he found that January 5, 2002, the day Stevens left work, was the fictional new accident date. Because Liberty Mutual was the insurance carrier on that date, Judge Stenger declared it responsible for any benefits due Stevens.

Liberty Mutual appealed to the appellate division, where the Board affirmed the award in part and reversed in part on June 30, 2004. The Board adopted Judge Stenger's findings of fact and conclusions of law except for the factual finding that a new injury had occurred on January 5, 2002, and the holding that the change in condition statute did not apply to "medical only" claims. Instead, the Board found that the statute did apply to such claims if a compensable injury had been established by award² and reversed Judge Stenger's December 24, 2003, decision to that effect. The Board held that Travelers was responsible for payment of disability and ongoing medical benefits to Stevens, because it was the insurance carrier at the time of Stevens's injury. The Board found as a matter of fact that the...