Publications

UNUSUAL CLAIMS - CARDIOVASCULAR INJURIES,

PSYCHIC INJURIES, HERNIAS, AND DEATH

Presented By:

Thomas C. Holcomb

SPECIAL TYPES OF CLAIMS WITH CAUSATION PROBLEMS

A. Cardiovascular injuries (strokes and heart attacks)

Heart attacks and strokes are compensable under Georgia law, although almost always these conditions are brought on by strong preexisting disease processes that very well may be influenced by an individual's family background. However, if the work plays a part in causing the stroke or heart attack, then it is compensable.

In 1996, the law was amended to require some type of medical evidence to show a causal connection between the heart attack or stroke and the performance of an individual's usual duties of employment. The exact effect of this amendment is not really known. O.C.G.A. § 34-9-1(4). Previously, it was sufficient for a claimant to prove a compensable condition with only lay opinion evidence and the natural inference through human experience. Reynolds Construction Co. v. Reynolds, 218 Ga. App. 23 (1995).

The best defense to such cases is to provide medical evidence that there is no causal connection and that the heart attack or stroke was not caused by work if such evidence is available. Another very important component of defending any type of heart attack case is to know an individual's personal medical history and also a family history. A personal history of a heart condition or other health factors including cigarette smoking obviously could influence a medical opinion as to whether the heart attack was caused by an event at work or by a gradual disease process. Additionally, a significant risk factor normally found by medical opinion is an individual's family history regarding the occurrence of heart disease and cardiovascular problems.

B. Psychological Injuries

A purely psychology injury without an accompanying physical injury is not compensable under Georgia law. Hanson Buick, Inc. v. Chatham, 163 Ga. App. 127 (1982). However, psychological problems and disabilities that stem from an actual physical injury are compensable under Georgia law. Where an individual suffers a psychological injury at the same time as a physical injury and the physical injury continues to contribute to the psychological problem, the condition may be compensable even though the psychological condition was not technically the result of the physical injury. Southwire Co. v. George, 266 Ga. 739 (1996). In that case, the claimant was involved in a horrifying car-truck accident and suffered a physical injury that continued to remind him of the gruesomeness of the original accident. However, the bar against purely psychological injury without a physical injury has been recently upheld by the Supreme Court of Georgia in Abernathy v. City of Albany, which involved a city worker attempting to clean up corpses disinterred during a flood. 269 Ga. 88 (1988).

There will likely be a continuation of legislative efforts and possible court decisions to reverse Georgia's rule requiring a physical impact in order for a psychological condition to be compensable.

It should be noted that alcoholism is not covered as compensable. O.C.G.A. § 34-9-1(4). Additionally, drug addiction that is aggravated by a work accident or is not compensable unless the treatment actually caused the drug addiction. Waffle House, Inc. v. Bozeman, 194 Ga. App. 860 (1990); Fulmer Bros., Inc. v. Kersey, 190 Ga. App. 573 (1989).

C. Hernias

Special law governs the compensability of hernias in Georgia. There are several specific requirements. O.C.G.A. § 34-9-266.

DEATH CLAIMS

A. Cause of Death

Georgia law presumes that an individual who is found dead or dying at work at a place he is supposed to be in the performance of his job duties is presumed to have died as a result of an injury which arose out of and in the course of employment. Goode Bros. Poultry Co. v. Kin, 201 Ga. App. 577 (1991). Without further evidence, the dependents of the deceased employee would prevail at a workers' compensation hearing. It is up to the employer to produce evidence as to a cause of death. The State Board still has the authority to reject such evidence, however, and find that the cause of death is unexplained and, therefore, compensable. Kin, supra. Generally speaking, it is required that the employer show that the cause of death is related to a problem, which just as likely could have happened at home and is the result of a personal illness or disease process such as a heart attack or stroke. Obviously, the claimant’s dependents may then come forward and still show that the heart attack or stroke was work-related. G&H Logging, Inc. v. Burch, 178 Ga. App. 28 (1986).

In the case of heart attacks, it is generally required that the employers affirmatively show that the cause of death was not work-related. The failure to do so triggers the presumption under Georgia law that the death arose out of and in the course of employment.

B. Dependency

For death benefits to be owed generally there must be dependents, although there is a $5,000 funeral allowance.

Minor children are conclusively presumed to be dependents. This means that the only issue regarding their dependency is proof that they are the children of the deceased. This is occasionally an issue; however, the more important issue is whether or not all children are known and included at the time payments begin.

At the time of death, a surviving spouse is presumed to be dependent however, if the spouse was employed within 90 days of the employee's date of death, the presumption of dependency is rebuttable. This is important because, if children are involved they are total dependents and, for the surviving spouse to draw any benefits, that spouse must also prove total dependence. If the spouse is partially dependent, then the surviving spouse receives no benefit at all, and the benefits will be divided among the children (although possibly paid to the spouse for the benefit and use of the children). O.C.G.A. § 34-9-13(d).

Dependency of the spouse becomes exceedingly important in the ultimate outcome of the case because death benefits paid only to the minor children would end when those children reach the age of 22 at the maximum (unless they, themselves, are disabled). However, if the spouse is also ruled to be totally dependent, he or she can receive benefits after the children reach age 22 until he or she reaches the age of 65. Obviously, this can increase the exposure of a death claim enormously. If, however, he or she is a partial dependent at the time of death, she draws no benefits and, therefore, a major exposure is eliminated.

It should also be noted that if, at the time of death, there is only a surviving spouse and no other dependent for one year or less after the date of death, the total compensation payable for death benefits is $100,000. O.C.G.A. § 34-9-265(d).

If at the time of the death, there are no dependents, the insurer or self-insurer shall pay to the State Board of Workers' Compensation one-half of the benefits which would have been payable to such a dependent or dependents, or the sum of $10,000, whichever is less. O.C.G.A. § 34-9-265(f).