Glisson v. Rooms to Go

• Decision Date: 01 December 2004
• Docket Number: No. A04A0977.,A04A0977.
• Citation: 270 Ga. App. 689,608 S.E.2d 50
• Parties: GLISSON v. ROOMS TO GO.
• Court: Georgia Court of Appeals

608 S.E.2d 50

270 Ga. App. 689

GLISSON v. ROOMS TO GO.

No. A04A0977.

Court of Appeals of Georgia.

December 1, 2004.

R. Riddle, Callaway, Braun, Riddle & Hughes, P.C., Savannah, for Appellant.

Robert Hardeman, Alpharetta, for Appellee.

BARNES, Judge.

Not knowing that she was entitled to receive workers' compensation income benefits for time she lost due to a compensable injury, Phyllis Glisson used more than seven weeks of vacation, personal, and sick leave when she was unable to work because of a work-related injury. An administrative law judge found that Glisson was entitled to temporary total disability ("TTD") income benefits for that time period, but that her employer, Rooms To Go, was entitled to credit for the leave time she used. The appellate division held that Glisson was not entitled to income benefits, and the superior court affirmed. Glisson appealed to this court, and for the reasons that follow, we reverse.

Glisson sustained a work-related injury to her right shoulder in April 2000, for which she received workers' compensation medical benefits. In June 2002, her treating physician assessed her as having a five percent permanent partial disability to her right arm, and she received a lump sum payment for that permanent injury. Glisson sought TTD benefits for the 52.75 days she missed between April 2000 and June 2002, during which time she used all of her accrued vacation and sick leave. In response to that request, Rooms To Go sought credit for temporary total disability payments made to Glisson under a "wage continuation plan" pursuant to OCGA § 34-9-243.

At the hearing before the ALJ, Rooms To Go presented no evidence regarding its leave policies or anything else. Glisson testified and introduced her medical evidence. The ALJ found that Glisson was entitled to TTD benefits, but also found that her employer was entitled to a credit for the leave time Glisson used. Both parties appealed to the appellate division of the workers' compensation board, the employer contesting that Glisson was entitled to income benefits, and Glisson contesting the determination that the employer was entitled to a credit.

The appellate division vacated the ALJ's decision, analyzing Glisson's circumstances as a change in condition under OCGA § 34-9-104(a)(1). It determined that the employee's use of her leave time constituted an "award" of benefits that established her wage-earning capacity, and that the employee had the burden of proving that she suffered a subsequent change in her economic condition before she was entitled to TTD benefits. Because she could not show such an economic change, the appellate division reasoned, the employee was not entitled to TTD. And because she was not entitled to TTD, the employer was not entitled to a credit.

Glisson appealed that decision to the superior court, which affirmed it. The court held that "the Appellate Division of the [Board] was correct in their assessment that the intent behind the Act is to limit the employer's liability for a work-related injury to one recovery." Because Glisson received her regular salary (by using up her leave time), the court concluded she was not entitled to TTD benefits for the same time period.

Glisson argues on appeal that the superior court erred in affirming the appellate division's conclusion that she was not entitled to workers' compensation income benefits for the period between April 8, 2000, the date of her injury, and May 31, 2002, because she was entitled to income benefits for the days she missed because of her work-related injury, and because Rooms To Go was not entitled to credit for the leave time she used.

1. The first question is whether Glisson was entitled to TTD benefits based on her compensable injury. The employer did not dispute that her injury was work-related, and paid her permanent partial disability

benefits for a five percent loss of use of her arm.

The Workers' Compensation Act constitutes a complete code of laws upon the subject, and the recoverability of workers' compensation benefits is strictly a matter of statutory construction, because there is no common law right to such benefits. In construing a statute, our goal is to ascertain its legislative intent and meaning. Statutes should be read according to the natural and most obvious import of the language, without resort to subtle and forced constructions, for the purpose of either limiting or extending their operation. When a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it but must construe it according to its terms.

(Punctuation and footnotes omitted.) Mickens v. Western Probation Detention Center, 244 Ga.App. 268, 269-270(1), 534 S.E.2d 927 (2000).

The appellate division's analysis incorrectly concludes that the employer's use of the employee's leave time, at the employee's instigation, constituted an "award" so that the burden of proving a subsequent change in condition, and thus entitlement to TTD benefits, shifted to the employee.

A change of condition under OCGA § 34-9-104, which the appellate division found absent, is defined as "solely an economic change in condition occasioned by the employee's inability to work or to continue to work for the same or any other employer, which inability is proximately caused by the accidental injury." (Punctuation and footnote omitted.) City of Atlanta v. Arnold, 246 Ga.App. 762, 763-764(2), 542 S.E.2d 181 (2000). That analysis has no application to this case, in which the claimant is not contending that her earning capacity is diminished. The claimant in Arnold, on the other hand, chose to retire while he was performing light-duty work at his pre-injury wage, and therefore could not prove a change in condition under OCGA § 34-9-104. The burden of proof in the case before us should not have been on the employee to establish a change in condition, and the ALJ properly found that Glisson was entitled to TTD benefits.

This case is unlike State of Ga. v. Graul, 181 Ga.App. 573, 353 S.E.2d 70 (1987) (physical precedent only), in which the claimant used up her leave and then sought workers' compensation income benefits for future lost time. The court analyzed the case as a change in condition, under which the employer had the burden of proof because it unilaterally suspended the claimant's benefits after her leave ran out.

Further, both the claimant in Graul and the claimant in State of Ga. v. Head, 163 Ga.App. 842, 296 S.E.2d 157 (1982), were state employees, for whom the state personnel rules applied, which required an employee to use up her leave time before becoming eligible for workers' compensation income benefits. The State Personnel Board Rules and Regulations do not apply in this case.

Further, the State Personnel Board rules when Graul was decided required the state to file a form showing that the claimant elected to receive salary benefits in lieu of workers' compensation income benefits. We have no such contractual showing here regarding Rooms To Go's policies regarding the use of leave time in lieu of workers' compensation benefits, as the company failed to present any evidence at the workers' compensation hearing of its leave policies or of anything else.

As Presiding Judge Ruffin so eloquently explains in considering whether Glisson sustained an economic injury, an employee who is required to forego leave benefits in lieu of receiving workers compensation benefits sustains an economic injury, because if for example she "must miss work due to illness or injury unrelated to her employment, her economic ability to weather the storm is compromised because she used personal leave when she was entitled to receive workers' compensation income benefits." Therefore, we conclude that Glisson was entitled to TTD benefits.

2. If Glisson is entitled to TTD benefits, the next issue becomes whether her employer was entitled to credit for Glisson's use of her leave time, an issue the appellate

division did not reach. The ALJ did consider the issue, however, and determined that "the payment of a salary to Ms. Glisson, even if it was in the form of vacation, sick, or personal leave pay, is a wage continuation plan as contemplated by OCGA § 34-9-243. Accordingly, the employer/insurer is entitled to a credit for those wages paid."

A "wage continuation plan" is a specific plan designed to operate when an employee is entitled to income benefits for a compensable injury. OCGA § 34-9-243(a) provides, "The payment by the employer ... to the employee ... of salary or wages ... during the employee's disability shall be credited against any payments of weekly benefits due." The claimant argues that she was not paid her wages, but instead used her personal leave time, and nothing in the record shows otherwise.

One treatise on Georgia Workers Compensation Law quotes another treatise as noting that "credit is usually denied for any kind of sick pay or vacation pay to which the claimant is entitled upon the basis of his past service rather than on the basis of his injury. But see State [of Ga.] v. Head, [supra,] 163 Ga.App. 842, 296 S.E.2d 157 (1982)." Kissiah's Georgia Workers' Compensation Law, Ch. 20, § 20.04, quoting Larson's Workers' Compensation Law, Ch. 82, § 82.06(3). In this case, Rooms To Go produced no evidence establishing the terms of Glisson's leave time, and thus failed to meet its burden of proof.

Under Rooms To Go's argument, it would be entitled to credit for Glisson's use of her leave time as a wage continuation plan, although it failed to produce any evidence showing that its compensation to Glisson fell within that category of payments for which it is entitled to receive credit. If this were the rule, then any employer who grants employee leave benefits can avoid having to pay workers' compensation income benefits simply by not telling its employees they may be...