Subsequent Injury Trust Fund of Georgia v. Harbin Homes, Inc., 74147

• Decision Date: 11 March 1987
• Docket Number: No. 74147,74147
• Parties: SUBSEQUENT INJURY TRUST FUND OF GEORGIA v. HARBIN HOMES, INC. et al.
• Court: Georgia Court of Appeals

Page 702

355 S.E.2d 702

182 Ga.App. 316

SUBSEQUENT INJURY TRUST FUND OF GEORGIA v. HARBIN HOMES, INC. et al.

No. 74147.

Court of Appeals of Georgia.

March 11, 1987.

Rehearing Denied March 25, 1987.

Michael J. Bowers, Atty. Gen., Marion O. Gordon, First Asst. Atty. Gen., Wayne P. Yancey, Sr. Asst. Atty. Gen., Rita J. Llop, Asst. Atty. Gen., for appellant.

Guy R. Taylor, Atlanta, for appellees.

BIRDSONG, Chief Judge.

This appeal appears before us as the result of the grant of an Application for Discretionary Appeal to the Subsequent Injury Trust Fund. The facts giving rise to this appeal show that an employee-claimant (Roberts) was employed by the respondent Harbin Homes, Inc. and covered by its workers' compensation insurer, American Motorist Company. The record establishes that the claimant, Ms. Roberts, had suffered from a functional seizure disorder similar to epilepsy for a period of time before she was employed by Harbin Homes as a full-time employee, hired with full knowledge of the disability and indeed under a company policy of hiring the disabled. A few weeks after Ms. Roberts was hired, she suffered an incapacitating back injury. She was treated and returned to work but within a couple of days was fired, apparently because she could not function as well as the employer had expected. Ms. Roberts became unemployed in 1982 following the back injury and has been paid workers' compensation from that time by the insurer-employer.

During the period from 1982 until 1986, Ms. Roberts has been repeatedly treated and evaluated for her seizure disorder and her back condition. The employer-insurer eventually concluded from the medical evaluations of Ms. Roberts that the injury to Ms. Roberts' back of September 1982, had been materially, substantially and cumulatively aggravated by the permanent and pre-existing seizure syndrome and together they curtailed her ability to gain economic employment. Pursuant to OCGA § 34-9-350 et seq., the employer-insurer made application to the Subsequent Injury Trust Fund for reimbursement for her back injury. The Subsequent Injury Trust Fund denied the reimbursement because it contended the the employer-insurer had not established that the pre-existing seizure condition had been shown to have "merged" with the back injury so as to aggravate the back injury to the point of materially contributing to Ms. Roberts' state of unemployability. Evidence established that there were no detectable organic grounds for Ms. Roberts' seizures; thus, they were characterized as a functional disorder. There was evidence the seizures perhaps were caused by stress and emotional factors. Because maximum rehabilitative level had been achieved in regard to the back injury, she did not receive further medical intervention in regard to the back injury. A pain control center concluded that Ms. Roberts had achieved a maximum level of recovery and rehabilitation although she continued to display symptoms of depression and a low level of self-confidence.

As late as 1985, a rehabilitative report to the State Board of Workers' Compensation indicated that Ms. Roberts still complained of low back strain and still suffered from functional seizures. Once again it was verified that Ms. Roberts was diagnosed as having reached maximum medical improvement from her back injury of 1982. Ms. Roberts was released back to work but without success. There was evidence presented that the difficulty experienced by Ms. Roberts in obtaining reemployment was actuated by the existence of the functional seizures, by emotional problems, by transportation problems, by scarcity of employment opportunities in her immediate neighborhood, by her low educational background and her lack of or low degree of financial motivation, as well as by the continuing discomfort from the...