Holt Service Co. v. Modlin, 63800
| Decision Date | 14 July 1982 |
| Docket Number | No. 63800,63800 |
| Citation | 163 Ga.App. 283,293 S.E.2d 741 |
| Parties | HOLT SERVICE COMPANY et al. v. MODLIN. |
| Court | Georgia Court of Appeals |
Robert B. Hill, Atlanta, for appellant.
Joey M. Loudermilk, Alex Byars, Columbus, for appellee.
In 1976 claimant-appellee Modlin sustained a back injury while employed as a pipe welder by Daniel Construction Company ("Daniel") in Alabama. Due to this injury, Modlin missed work for one and one-half to two weeks, and he received Alabama workers' compensation benefits. He then returned to work for Daniel performing light duties, at least temporarily. After he left Daniel, Modlin was subsequently employed by a construction company in Albany, Georgia and later by Holt Service Company ("Holt") as a general maintenance worker whose duties included making welding repairs.
Although he did not report it to Holt, his employer at the time, Modlin was hospitalized in June 1978 for pain in the same area of his back as the initial 1976 injury. His medical expenses were paid by Daniel's insurer. Between 1976 and July 8, 1980 several flare-ups of this back pain occurred, caused by no particular incident ascertainable by Modlin. In mid-July 1980 Modlin underwent surgery on his spine for removal of a ruptured disc, the same disc which tests performed in 1978 had revealed a torn covering resulting in a bulge of the soft tissue between the adjacent two vertebrae.
Modlin's final day of work for Holt was July 8, 1980, and he did not return to work after surgery. Modlin filed a claim for workers' compensation benefits from his employer Holt and Holt's insurer, Centennial Insurance Company, notice of which was mailed by the State Board of Workers' Compensation ("Board") on September 30, 1980. Holt's Notice to Controvert Payment of Compensation was received by the Board on November 4, 1980. After a hearing and the presentation of evidence, the Administrative Law Judge ("ALJ") issued an award in favor of Modlin. The Board affirmed the ALJ's decision, adding the conclusion that the aggravation of Modlin's pre-existing condition constituted a new accident as of the date on which he was unable to continue work, July 8, 1980. The Board's award was affirmed by the Superior Court of Muscogee County. Holt and its insurer appeal from the Board's decision.
1. Appellants contend that Board Rule 705(d), applied by the ALJ and the Board in this case, is void as an invalid extension of statutory power, the result of which is the erroneous shift of the burden of proof to the employer. Rule 705(d) provides that Form No. WC3 is to be used by the employer to controvert the claimant's right to compensation benefits. The portion of Rule 705(d) at issue provides: "If Form No. WC3 is not filed on or before the 21st day after knowledge of the injury or death, the accident will be presumed to be compensable, subject to rebuttal."
" 'The State Board of [Workers'] Compensation is an administrative commission, with such jurisdiction, powers, and authority as may be conferred upon it by the General Assembly.' " American Cas. Co. v. Wilson, 99 Ga.App. 219, 221, 108 S.E.2d 137 (1959). Southern Co-operative Foundry Co. v. Drummond, 76 Ga.App. 222, 224, 45 S.E.2d 687 (1947). Although Code Ann. § 114-703(a) grants to the Board the power to "make rules, not inconsistent with this Title, for carrying out the provisions of this Title," Board rules so promulgated may not enlarge, reduce, or otherwise affect the substantive rights of the parties. "[T]he rule-making powers of the Board are confined and limited to procedural and administrative matters." Southern Co-operative Foundry Co., supra at 224, 45 S.E.2d 687.
The claimant in a workers' compensation proceeding has the burden of proof to show that his injury is compensable. Commercial Union Assoc. Co. v. Couch, 143 Ga.App. 64(1), 237 S.E.2d 528 (1977); Travelers Ins. Co. v. Hall, 128 Ga.App. 71(2), 195 S.E.2d 679 (1973); Employers Mut. Liab. Ins. Co. v. Anderson, 96 Ga.App. 509(2), 100 S.E.2d 611 (1957). This tenet embodies the basic precept of Code Ann. § 38-103 which states that "[t]he burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential." Undoubtedly, the claimant in a workers' compensation proceeding is asserting a compensable injury, the existence of which must be shown in order for recovery for such claim to be granted.
As the Board's power is limited to making rules which are administrative or procedural, inquiry is necessary to determine whether a rule providing for a rebuttable presumption of compensability which shifts the burden of proof in a workers' compensation claim is procedural or substantive. Guidance on this question is found in the area of conflict of laws. The United States Supreme Court stated in Dick v. New York Life Ins. Co., 359 U.S. 437, 446, 79 S.Ct. 921, 927, 3 L.Ed.2d 935 (1959) that "[u]nder the Erie rule, presumption (and their effects) and burden of proof are 'substantive' ...." Further explanation in the same vein is provided in Restatement 2d, Conflict of Laws §§ 133, 134 which, although written to aid in determination of the applicability of foreign or domestic law, nevertheless, affords illumination for classifying presumptions and burdens of as substantive or procedural. Under the approach propounded by the Restatement, rules which are designed to regulate the conduct of the trial are procedural, while those designed to affect decision of the issue are substantive. Compensability of the claimant's injury is the central issue in a workers' compensation claim, and the presumption of compensability afforded claimant's injury at the outset although rebuttable, is granted under a substantive Board rule, rather than a procedural one, as it affects decision of this central issue.
The effect of Rule 705(d) is to shift the burden of proof on the main point that claimant would otherwise have to prove. This reversal of burdens is based solely upon the employer/insurer's failure to file a Notice to Controvert the claim within the 21-day statutory period provided by Code Ann. § 114-705(d). This mandatory filing requirement has been legislated by the General Assembly. See Ga.L. 1978, pp. 2220, 2227. Rule 705(d), however, has no such legislative endorsement. It was promulgated only by the Board and, although it was most probably designed to strengthen the filing requirement approved by the legislature, in reality it provides for a punitive...
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