Opinion
S22C0742
11-17-2022
CR ENGLAND, INC. et al. v. CARLTON SMITH.
The Honorable Supreme Court met pursuant to adjournment. The following order was passed:
Petitioner CR England, Inc. employed respondent Carlton Smith as a commercial long-distance truck driver and trainer. On March 31, 2018, Smith was supervising a trainee driver who, while unhitching a trailer, pulled on the landing gear lever, which popped loose and struck Smith in the left eye, sending him to the hospital. Although Smith had previously injured his left eye in 2009 while working for a prior employer, by the time of the March 2018 accident, his left eye was stable. The March 2018 accident knocked an artificial lens implanted after the 2009 injury out of Smith's eye, ruptured a surgical wound from the prior eye injury, damaged the tissue around the rim of the iris that allows fluid to pass out of the eye, and otherwise severely damaged Smith's left eye.
CR England accepted the March 2018 injury to Smith's left eye as compensable under the Workers' Compensation Act and paid him weekly temporary total disability (TTD) benefits from April 1 through June 16, 2018. Smith then returned to work, but the vision in his left eye continued to deteriorate, making it harder and harder for him to drive, and it eventually reached the point that he needed eye surgery and was placed on permanent medical restrictions. CR England not only refused to authorize the eye surgery, but also fired Smith based on an assumption by its compliance manager that the restrictions meant that Smith could no longer get a commercial driver's license. CR England also refused to restart Smith's weekly TTD benefits.
Smith challenged CR England's actions, and after a hearing and a review of the extensive medical evidence, on March 31, 2021, a State Board of Workers' Compensation administrative law judge (ALJ) entered a detailed order that explicitly recognized that "where a worker is asking for restart of income benefits after stopping work, the burden of proving a change in condition [for the worse] is on him," and found that Smith had met his burden. The ALJ's order directed CR England and its workers' compensation carrier, petitioner Indemnity Insurance Company of North America (collectively, "petitioners"), to pay Smith lost weekly wage benefits at the rate of $575 per week for the period beginning February 3, 2020, through the date of the hearing, and continuing until reduced or ended according to law. The order also directed petitioners to pay Smith's medical expenses as set out in the ALJ's order and any other medical expenses that the parties agree are reasonable in amount and reasonably required to bring about a cure or give relief. The order further directed petitioners to pay Smith $620 as reimbursement for payments that he made directly to his doctors. Finally, the order denied Smith's request for assessed attorney fees and litigation expenses.
Petitioners appealed the ALJ's order to the Appellate Division of the State Board of Workers' Compensation, and Smith filed a cross-appeal. After reviewing the record as a whole and considering the arguments of petitioners and Smith, on September 7, 2021, the Appellate Division issued an award that adopted the ALJ's order in part and amended it in part. Like the ALJ's order, the Appellate Division's award explicitly recognized that Smith "bore the burden of proof as to that change in condition [for the worse], and [that] he carried that burden." The Appellate Division further found that petitioners underpaid Smith by $2,750 in weekly TTD benefits, a substantial portion of which petitioners later paid him, and directed petitioners to pay Smith $575 for the remainder of the underpayment together with a 15% penalty. The Appellate Division also struck the ALJ's denial of assessed attorney fees and litigation expenses and directed petitioners to pay Smith $790.63 in assessed attorney fees as an added penalty for the underpayment.
Petitioners appealed the Appellate Division's award to the Superior Court of Glynn County, which issued an order on December 16, 2021, that affirmed the Appellate Division's award. On January 14, 2022, petitioners filed an application for discretionary appeal in the Court of Appeals, which that court denied on February 14, 2022, in a unanimous, one-sentence order denying petitioners' discretionary application.
The Court of Appeals' order said, in full: "Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby DENIED."
On March 6, 2022 - more than two years after CR England refused to authorize the surgery needed to save Smith's left eye, fired him, and refused to restart his weekly TTD benefits -petitioners filed in this Court a petition for certiorari seeking to challenge the Court of Appeals' order denying their application for discretionary appeal. Smith filed a response asking this Court not only to deny the petition, but also to sanction petitioners for filing a petition for certiorari that on its face fails to present a good faith legal dispute and that was filed for the sole purpose of delaying petitioners' obligation to provide a seriously injured worker with necessary medical treatment and weekly income benefits that petitioners are legally required to pay. Smith did not file a separate motion asking this Court to sanction petitioners for filing a frivolous petition for certiorari. See Supreme Court Rule 26 ("Any motions may be filed while a matter is pending in the Court. Motions should comply with Rules 15, 16, and 17.").
We agree with Smith's characterization of the petition for certiorari. The petition describes the Court of Appeals' unpublished, one-sentence order denying petitioners' discretionary application as a "precedent" that constitutes a "fundamental departure from existing, well-settled law"; asserts that the Court of Appeals' order "[o]verturns undeniable, well-settled, and longstanding case law in Georgia relating to the burden of proof being on an [e]mployee to prove entitlement to indemnity benefits by showing a change of condition for the worse"; and claims that the petition raises an important question of law that this Court needs to resolve, namely, "who holds the burden of proof in a change of condition for the worse case - an [e]mployee or the [e]mployer?" But an unpublished order is no precedent and cannot "overturn" published decisions by this Court and the Court of Appeals establishing that the burden of proof in a change of condition for the worse case rests squarely on the employee who is seeking to restart of his weekly TTD benefits. See, e.g., Maloney v. Gordon County Farms, 265 Ga. 825, 826 (462 S.E.2d 606) (1995) ("If a resumption of disability income benefits is sought, as in the present case, the burden of proving a change in condition [for the worse] is on the claimant."). Moreover, both the ALJ's order and the Appellate Division's award explicitly recognized that the burden of proof in a change of condition for the worse case seeking to restart an employee's weekly TTD benefits rests squarely on the employee, and both the ALJ and the Appellate Division found, based on extensive medical evidence, that Smith carried that burden here.
Accordingly, the petition for certiorari is hereby denied. In addition, we impose a penalty of $1,000 against attorney James Hunter Chandler for filing a patently frivolous petition for certiorari. See Supreme Court Rule 6. The imposition of this penalty shall constitute a money judgment in favor of Smith against Chandler, who shall satisfy the judgment without charge to his clients. See id. Because the Court is acting without a motion, Chandler may file a motion for reconsideration within ten days of receipt of this order. However, we remind him that further frivolous filings may subject him to additional sanctions.
Petition for certiorari denied. Attorney sanctioned. All the Justices concur, except Pinson, J., disqualified.