Goswick v. Murray County Bd. of Educ.

• Decision Date: 01 September 2006
• Docket Number: No. A06A1835.,A06A1835.
• Citation: 281 Ga. App. 442,636 S.E.2d 133
• Parties: GOSWICK v. MURRAY COUNTY BOARD OF EDUCATION et al.
• Court: Georgia Court of Appeals

281 Ga. App. 442

636 S.E.2d 133

GOSWICK v. MURRAY COUNTY BOARD OF EDUCATION et al.

No. A06A1835.

Court of Appeals of Georgia.

September 1, 2006.

Finn & Hurt, Thomas M. Finn, Dalton, for appellant.

Sponcler & Tharpe, Maurice Sponcler, Jr., Dalton, for appellees.

George & Wallach, Alex B. Wallach, Forest Park, Lee Southwell, Atlanta, amici curiae.

BLACKBURN, Presiding Judge.

In this workers' compensation case, Wayne Goswick appeals an administrative law judge's decision (adopted by the Workers' Compensation Board and affirmed by the trial court) to suspend his disability payments because of his failure to undergo a physical examination requested by his employer (Murray County Board of Education) and ordered by the ALJ. We hold that OCGA § 34-9-202 authorized the ALJ's decision under these circumstances, and we therefore affirm.

The standard of review in workers' compensation appeals is clear:

In the absence of legal error, the factual findings of the State Board of Workers' Compensation must be affirmed by the superior court and by the Court of Appeals when supported by any evidence in the administrative record. 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 and footnote omitted.) Trent Tube v. Hurston.¹

Construed in favor of the ALJ's decision (which was adopted by the Board), the evidence shows that after experiencing a knee injury on the job in 2001 (exacerbated in 2002), Goswick began receiving disability payments from his employer and medical treatment from Dr. Herndon. Following lengthy treatment, Dr. Herndon determined that absent a knee replacement, no further medical treatment was at that time possible, and that Goswick should return to Dr. Herndon when Goswick felt such was necessary. Goswick ceased seeing Dr. Herndon, and disability payments continued.

Eighteen months later, the employer requested that Goswick return to Dr. Herndon at the employer's expense for an examination to determine his current medical status. Goswick refused, claiming he was not required to do so. Citing OCGA § 34-9-202, the employer moved the Board to compel Goswick to undergo the examination and to suspend benefits. Goswick responded, claiming that OCGA § 34-9-202 did not require him to undergo an examination by his treating physician. The ALJ assigned to the matter ruled in favor of the employer, finding Goswick's refusal unjustified and ordering Goswick to undergo the examination by Dr. Herndon.

Goswick refused to comply with the order. The employer moved for a suspension of benefits until Goswick complied with the order and further asked for its attorney fees in prosecuting the motion. Goswick responded by again claiming that OCGA § 34-9-202 did not require that he undergo an examination by his treating physician. The ALJ disagreed, holding that OCGA § 34-9-202 did authorize the examination and reiterating that Goswick was unjustified in refusing to undergo the ordered examination. The ALJ suspended Goswick's disability payments until he complied and further awarded the employer its attorney fees.

Goswick appealed the matter to the Board and also requested that (under the concept of supersedeas) the Board reinstate his benefits pending the appeal. The Board refused to reinstate benefits pending appeal and affirmed the ALJ's decision, adopting his opinion as its own. Goswick appealed the matter to the superior court, which held a timely hearing but did not enter an order within 20 days of the hearing. On March 1, 2006, the Board decision was affirmed by operation of law under OCGA § 34-9-105(b). See MacKenzie v. Say-A-Lot Food Store.² We granted Goswick's application for a discretionary appeal.

1. Goswick first claims that the ALJ erred in holding that OCGA § 34-9-202 authorized his employer to require Goswick to undergo a medical examination by his treating physician. Assuming that Dr. Herndon was Goswick's treating physician (even though he had not seen him in 18 months and no further treatment was planned), we hold that the plain language of OCGA § 34-9-202 authorized the employer to require Goswick to undergo the exam by Dr. Herndon and thus authorized the ALJ to order Goswick to submit to such an examination.

OCGA § 34-9-202(a) provides: "After an injury and as long as he claims compensation, the employee, if so requested by his employer, shall submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the board." Subsection (c) authorizes the suspension of benefits for refusing to submit to such an exam. This language is plain and unambiguous. At his employer's request and expense, Goswick, who was continuing to receive compensation, was required to undergo an examination by "a duly qualified physician or surgeon" or face a suspension of benefits. Goswick does not dispute that Dr. Herndon was duly qualified; rather, he maintains that traditionally, such exams are done by "independent" physicians who are not treating the claimant, and that in the past the Board has not relied on this statute to compel an exam by the claimant's treating physician.

Goswick's arguments ignore the plain language of the statute, which only requires that the examining physician be duly qualified, not that the physician be independent nor that the physician not be treating the claimant. Goswick has presented no expert "term of art" evidence under OCGA § 1-3-1(b) (assuming such were even admissible) that the words "duly qualified" exclude a treating physician, and therefore we attribute the ordinary signification to these words, which would include all duly qualified physicians, including those who may be treating the claimant. This accords with our obligation to strictly construe the workers' compensation statute. See MacKenzie, supra, 226 Ga.App. at 33(1), 485 S.E.2d 559.

Daniel v. Ford Motor Co.³ supports this conclusion. In Daniel, the Board found that the claimant had just undergone an employer-requested exam by another physician under OCGA § 34-9-202(a) and therefore was not required to undergo a second employer-requested exam by the claimant's treating physician. We affirmed on the basis that under the circumstances, the Board had the discretion to make this determination. Id. at 64, 76 S.E.2d 66. See OCGA § 34-9-202(c) (no suspension of benefits if "in the opinion of the board the circumstances justify the refusal"). At no point, however, did we intimate that OCGA § 34-9-202(a) only applied to exams by nontreating physicians. To the contrary, the clear implication of Daniel is that OCGA § 34-9-202(a) did authorize examinations by treating physicians and that had the Board so chosen, the Board could have ordered the exam there. We simply affirmed the Board's exercise of its discretion under the particular circumstances of that case to rule that the refusal to submit to the second exam by the treating physician was justified.

Citing Garner v. Owens-Illinois Glass Container,⁴ Goswick points out that OCGA § 34-9-202 protects an employee's right to have his treating physician present during the employer-requested exam; therefore, argues Goswick, the employer-requested exam must be by a physician other than the treating physician. But this argument proves the opposite point. The subsection of OCGA § 34-9-202 which protects the right of the claimant to have another physician present describes that physician as "any duly qualified physician or surgeon." OCGA § 34-9-202(b). Since, as conceded by Goswick, that physician may be claimant's treating physician, then subsection (a), which uses the same language ("a duly qualified physician or surgeon") in describing the physicians whom the employer may request perform the exam, necessarily also includes claimant's treating physician as a potential examiner.

Goswick then argues that a 2003 amendment to OCGA § 34-9-200(c) shows a legislative intent that OCGA § 34-9-202(a) did not intend to cover exams by treating physicians. Formerly, OCGA § 34-9-200(c) provided that a claimant's unreasonable refusal to accept medical, surgical, or hospital care or other treatment ordered by the Board authorized the Board to suspend benefits. See note to OCGA § 34-9-200(c). As argued by Goswick, the law distinguishes between treatment and examination. See Hartford Accident etc. Co. v. Barfield.⁵ Thus, former OCGA § 34-9-200(c) authorized the suspension of benefits for refusal to accept treatment ordered by the Board, and OCGA § 34-9-202(a) and (c) authorized the suspension of benefits for refusal to submit to an examination requested by an employer. The statutes therefore did not overlap but dealt with distinct situations, which was the state of the law when Goswick was injured and which is the law Goswick throughout this litigation has adamantly maintained should be applied to his case. Accordingly, based on Goswick's own arguments, the 2003 amendment should play no role in determining his case.

Nevertheless, in 2003 the legislature amended OCGA § 34-9-200(c) to address a claimant's refusal to submit to an examination rather than address his refusal to submit to treatment. OCGA § 34-9-200(c) now reads:

As long as an employee is receiving compensation, he or she shall submit himself or herself to examination by the authorized treating physician at reasonable times. If the employee refuses to submit himself or herself to or in any way obstructs such an examination requested by and provided for by the employer, upon order of the board his or her right to compensation shall be suspended until such refusal or objection ceases.

Thus, the new statute overlaps with OCGA § 34-9-202, in that OCGA § 34-9-202 addresses employer-requested examinations by a duly qualified physician or surgeon and OCGA § 34-9-200(c) addresses employer-requested examinations by the claimant's authorized...