Hartford Cas. Ins. Co. v. Hawkins

• Decision Date: 18 February 2020
• Docket Number: A19A1879,A19A1878
• Citation: Hartford Cas. Ins. Co. v. Hawkins, 353 Ga.App. 681, 839 S.E.2d 230 (Ga. App. 2020)
• Parties: The HARTFORD CASUALTY INSURANCE COMPANY et al. v. HAWKINS. State Farm Fire and Casualty Company et al. v. Hawkins.
• Court: Georgia Court of Appeals

353 Ga.App. 681

839 S.E.2d 230

The HARTFORD CASUALTY INSURANCE COMPANY et al.

v.HAWKINS.

State Farm Fire and Casualty Company et al.

v.Hawkins.

A19A1878

A19A1879

Court of Appeals of Georgia.

February 18, 2020

Matthew Dalby Walker, Ryan Mitchell Hathcock, Kelly Michelle Clark, Atlanta, for Appellant in A19A1878.

Kyle Evans Smith, for Appellee.

Callie D. Bryan, Sydney Wynn Solomon, Macon, Kelly Michelle Clark, Atlanta, for Appellant in A19A1879.

Coomer, Judge.

In these discretionary appeals, Aced It Golf, LLC d/b/a 92 Threads (the "Employer") and its two insurance carriers, State Farm Fire & Casualty Company and The Hartford Casualty Insurance Company (collectively, "Appellants") appeal the order of the superior court reversing the decision of the appellate division of the State Board of Workers’ Compensation (the "Board"), which denied, among other things, claimant Lisa Hawkins’ request for a change of physician. Appellants contend that the superior court erred (1) by failing to apply the "any evidence" standard of review to the Board’s findings of fact that Hawkins’ injuries had resolved as of August 1, 2017; (2) by granting Hawkins’ change of physician request despite the Board’s factual determination that no additional medical treatment was required for any work-related condition; and (3) by ordering the payment of attorney fees to Hawkins. For the following reasons, we reverse the superior court’s order in its entirety.

"In reviewing a workers’ compensation award, both the appellate court and the superior court must construe the evidence in the light most favorable to the party prevailing before the [Board]." Ray Bell Constr. Co. v. King , 281 Ga. 853, 854, 642 S.E.2d 841 (2007) (citations and punctuation omitted). Viewed in this light, the record shows that on October 8, 2015,¹ Hawkins tripped backwards over an open drawer and fell onto the floor during the course of her employment with the Employer, a small family-owned business that does T-shirt printing and embroidery work. She did not immediately seek medical treatment. After Hawkins notified the Employer about her injuries, the Employer authorized treatment with a physician chosen by Hawkins, Eli A. Finkelstein, M.D. at Resurgens Orthopaedics. The Employer did not have a properly completed panel of physicians at the time of the accident, but one of the owners talked with State Farm after the accident and compiled a panel of physicians, which included Dr. Finkelstein. Hawkins first saw Dr. Finkelstein on November 6, 2015, where she presented with complaints of neck, arm, shoulder, and lower back pain. Based on the results of an MRI, Dr. Finkelstein opined that there were "no findings in the cervical spine other than straightening of the lordosis," and that Hawkins’ shoulder "may show some mild evidence of subacromial bursitis and AC impingement, but otherwise no findings." Dr. Finkelstein referred Hawkins for a course of therapy, prescribed Flexeril, placed Hawkins on light-duty work restrictions with no use of the left upper extremity, and further referred Hawkins to Angelo DiFelice, M.D. to follow up on her shoulder pain. Hawkins first saw Dr. DiFelice in December 2015. Although showing some improvement, Hawkins reported pain, numbness, and tingling down her left arm and hand. Upon review of Hawkins’ MRI scan, Dr. DiFelice found no "obvious" rotator cuff tear, but placed her on restrictions "per Dr. Finkelstein."

In March 2016, Hawkins was evaluated for pain management by Eduardo Escorcia, M.D. Her treatment plan with Dr. Escorcia included bilateral cervical injections and various pain medications. Hawkins continued to work through 2016, but she felt that her workload "overwhelmed [her] shoulder" during the busy Christmas season. At this point, Hawkins informed the Employer that she could no longer do a full-time embroidery job and needed a light-duty accommodation. In February 2017, Hawkins underwent a second MRI. On February 16, 2017, Dr. Escorcia recommended light-duty restrictions including "[n]o pushing/pulling, no lifting, minimal upper body use for 4 to 6 weeks." Hawkins was terminated on March 6, 2017. The Employer admitted that "one of the reasons" for Hawkins’ termination was that she was unable to perform her regular duty job and she "couldn’t do as much of the work as we would have liked."

On May 8, 2017, Hawkins underwent a functional capacity evaluation ("FCE"), in which the majority of activities tested showed that Hawkins had "demonstrated abilities" in the light-duty category. The evaluator, however, opined that Hawkins "gave a self-limited effort," and that the results of the FCE did not reflect her true capabilities. Moreover, the evaluator stated that "unless an objective medical reason exists that would preclude return-to-work," Hawkins "should be returned to work." On May 17, 2017, Hawkins returned to Dr. DiFelice, and he noted that the FCE had some "inconsistencies" and that Hawkins was still symptomatic and suffering from some shoulder dysfunction. As a result, he again placed her on restrictions for her left shoulder with no overhead use of the left upper extremity, and lifting of up to two pounds below shoulder level.

On May 25, 2017, at State Farm’s request, Hawkins underwent an independent medical evaluation with Paul Mefferd, D.O. at Spine Rehabilitation Specialists of Georgia. Based on a review of medical records and tests, as well as his own independent medical examination, Dr. Mefferd opined that Hawkins was capable of a "return to regular duty and full-time work" and that no further medical treatment was necessary in connection with the October 8, 2015 work-related injury. On June 28, 2017, Dr. Finkelstein saw Hawkins and noted that although there was left shoulder dysfunction with "subjective neuropathic symptoms of the left upper extremity," he had no further treatment to offer and advised Hawkins to continue pain therapy. He also stated that any finding of disability would be at Dr. DiFelice’s discretion. On August 1, 2017, based upon his review of Hawkins’ medical records, her deposition testimony and surveillance materials taken at the request of the insurance companies, Dr. DiFelice opined that Hawkins’ "complaints of pain and disability of her left arm are inconsistent with Ms. Hawkins’ physical activities as depicted in the video surveillance" footage taken in June 2017 "showing her using her upper left extremity," that Hawkins had reached maximum medical improvement with regard to the October 8, 2015 work injury to her neck and left arm, that she would need no further work restrictions as a result of the injury, and that no additional medical treatment to her left upper extremity was required. State Farm controverted Hawkins’ claim on August 25, 2017, on the ground that no further medical care was required.

On August 8, 2017, Hawkins requested a change of physician to Xavier A. Duralde, M.D.² On October 11, 2017, Hawkins underwent an independent medical examination with Robert Karsch, M.D. Dr. Karsch opined that no further treatment was needed for Hawkins’ cervical spine. It was his impression that Hawkins’ "left sided neck and trapezius pain is from her posturing for her left shoulder pain" and would improve with further treatment. He noted that Hawkins could try a topical NSAID and PRP injection, and recommended surgical intervention if the PRP injection did not provide relief. Dr. Karsch stated that, absent further treatment, Hawkins was "[c]apable of sedentary or desk work only."

Hawkins filed a claim for workers’ compensation benefits, penalties, and assessed attorney’s fees against the Employer and State Farm based on an October 8, 2015 injury date. She also sought benefits against the Employer and Hartford due to the fact that she suffered a fictional new accident on March 7, 2017, when she was terminated from her job.³ At the hearing on her claims, Hawkins requested a change of physician to Dr. Karsch based on his recommended treatment plan.

Based on the foregoing, the Administrative Law Judge ("ALJ") found that Hawkins sustained an initial October 8, 2015 work-related injury, and that because Hawkins continued to work above the prescribed light-duty work restrictions, she suffered a new accident, in the form of aggravation of her pre-existing condition, on March 7, 2017, entitling her to benefits as of that date. . The ALJ, however, found that Hawkins’ work-related injuries resolved as of August 1, 2017, when her treating physicians found her capable of returning to regular-duty, unrestricted work and opined that no further medical treatment was required for her work-related conditions. The ALJ did not find Hawkins’ testimony about her continued pain to be credible based in part on her own observations during the duration of the five-hour hearing, in which Hawkins "did not fidget, grimace or exhibit any other behaviors which would suggest that she was in pain." Accordingly, the ALJ concluded that Hawkins was entitled to total temporary disability benefits effective March 7, 2017 to August 1, 2017, payable by Hartford. The ALJ denied Hawkins’ requests for attorney’s fees and late payment penalties, and further denied her request for a change in her authorized treating physician and for additional medical treatment with regard to either the October 8, 2015 or March 7, 2017 dates of injury.

Hawkins appealed to the Board, arguing in pertinent part that the ALJ (1) erred in finding that both her October 8, 2015 and March 7, 2017 work injuries resolved as of August 1, 2017; and (2) erred in denying her request for a change of physician under Board Rule 201 (c). The Board adopted the ALJ’s order in its entirety. Hawkins then appealed to the superior court.

Following a hearing, the superior court reversed the decisions of the Board and ALJ. Specifically, the superior court found that the Employer and State Farm failed to maintain a valid panel of physicians in violation of OCGA § 34-9-201 and Board Rule 201 at the...