STATE BOARD OF WORKERS' COMPENSATION 270 Peachtree Street, NW Atlanta, Georgia (404)

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1 Trial 270 Peachtree Street, NW Atlanta, Georgia (404) STATEMENT OF THE CASE The above-styled case came before the Trial Division on July 27, 2012 pursuant to Form WC-14 filed on behalf of the Employee on March 19, 2012 seeking temporary total disability benefits commencing October 19, 2011 and continuing, a change of physician from Dr. Scott Bowerman to Dr. Paul Spiegl, and assessed attorney s fees for what he contends has been an unreasonable defense of this claim. The Employee contends the Employer/Insurer improperly suspended benefits to him based on a full duty release from Dr. Bowerman because Dr. Bowerman had earlier assigned him permanent work restrictions. He further contends that the Employer/Insurer improperly and unjustifiably failed to recommence income benefits to him on February 2, 2012, when Dr. Bowerman once again assigned light duty restrictions to the Employee. He also contends that the Employer failed to maintain a proper panel of physicians and further failed to inform him of the protocol for choosing a physician in the event he were to suffer the job injury. Based on this, he contends he is entitled to choose the physician of his choice, and urges that Dr. Spiegl be appointed his authorized treating physician. Alternatively, he contends the treatment provided by Dr. Bowerman has been ineffectual, that he has lost confidence in Dr. Bowerman, and that he feels comfortable with Dr. Spiegl, in whom he has confidence and who the Employee contends has a better treatment plan for him. Finally, he contends the Employer/Insurer has unreasonably defended this claim, and seeks assessed attorney s fees on this basis. The Employer/Insurer, for their part, contend they properly suspended income benefits to the Employee based on a full duty release signed by Dr. Bowerman on September 30, 2011 and that he is not entitled to income benefits after February 2, 2012 as he did not establish by preponderance of the evidence that he suffered a loss of earning power as a result of his compensable injuries, that he continues to suffer physical limitations attributable to the injuries and that he has made a diligent, but unsuccessful, effort to secure suitable employment, citing to the case of Brown Mechanical Contractors Inc. v. Maughon, 2012 Ga. App. LEXIS 490, 728 S.E.2d 757 (Ct. App. Decided May 31, 2012). Additionally, they contend that the treatment rendered by Dr. Bowerman has been and continues to be appropriate for the Employee s injuries and argue that a change of physician to Dr. Spiegl is unwarranted. Further, they seek a credit for permanent partial disability benefits paid to the Employee. Finally, they contend their defense in this claim has been reasonable, and oppose the Employee s request for assessed attorney s fees. The Employee was the sole witness to testify at the hearing. Each party tendered medical records and other documentary evidence which were admitted and considered by the undersigned. After the record closed at the conclusion of the hearing, the parties submitted briefs in support of the respective positions. The briefs and the entire record have been considered in formulating this award. Upon consideration of the entire record, I find the Employer/Insurer properly suspended payment of temporary total disability benefits to the Employee on October 18, 2011 based on a full duty release by the Employee s authorized treating physician. However, I find the Employee underwent a change in condition for the worse on February 2, 2012, when his authorized treating physician placed him on light duty work restrictions. I find that

2 the Employee conducted a diligent, but unsuccessful job search suitable to meet the threshold set out in Maughon, supra. In fact, he has performed some work since that date, but was unable to continue in that work due to his injuries. I also find that a change of physician from Dr. Scott Bowerman to Dr. Paul Spiegl is appropriate under the circumstances. Consequently, Dr. Spiegl will be appointed the Employee s authorized treating physician for treatment of his compensable injuries. I find the Employer/Insurer s defense of this claim to have been reasonable, and deny the Employee s request for assessed attorney s fees. Finally, I find the Employer/Insurer have failed to demonstrate their entitlement to a credit for permanent partial disability benefits paid to the Employee. Therefore, this aspect to the claim will be denied. FINDINGS OF FACT AND CONCLUSIONS OF LAW Based upon the stipulations of the parties and after consideration of all evidence contained within the record, I find as a matter of fact and conclude as a matter of law as follows: 1. The State Board of Workers Compensation has jurisdiction to decide the issues presented in this claim and both parties are subject to the Act. Venue is proper in Floyd County for a Polk County injury and the Employer was properly insured for workers compensation purposes on the date of injury. The parties further stipulated that the Employee was in the general employ of the Employer on the date of injury earning an average weekly wage of $455.83, which translates to a weekly benefit rate of $ This is an accepted claim, and the parties were able to stipulate that the Employee suffered an injury arising out of and in the course of his employment with the Employer with injury and disability resulting therefrom. There is no issue concerning notice under O.C.G.A There are mixed burdens of proof in this claim. The Employer/Insurer have the burden of proving that they properly suspended payment of income benefits to the Employee on October 18, The burden then falls on the Employee to demonstrate that he is entitled to a resumption of income benefits effective February 2, 2012 and that he is entitled to a change of physician from Dr. Scott Bowerman to Dr. Paul Spiegl. The burden of proving his entitlement to an assessment of attorney s fees also lies with the Employee. Finally, in the event income benefits are found to be payable to the Employee, the Employer/Insurer request a credit for permanent partial disability benefits previously paid to him. The burden of proving their entitlement to this credit rests with the Employer/Insurer. 3. The Employee was employed by the employer as a lead carpenter performing framing and remodeling, which required him to remain on his feet most of the day. He has always worked in the construction field, and had performed residential work for the Employer in the six and one half years leading up to his date of injury of August 25, On that date, he fell from a ladder, landing on his feet and fracturing his heels bilaterally. He was taken by his supervisor, who is also the owner of the company, to Floyd Medical Center where he was treated for his injuries and discharged to home in a wheelchair. He was advised by personnel at Floyd Medical Center to seek specialized treatment at the Rome Orthopedic Clinic. 4.

3 Upon his initial visit to Rome Orthopedic Clinic, he was treated by Dr. Scott Bowerman, who has remained the Employee s treating physician ever since. Dr. Bowerman placed the Employee in a cast and scheduled him for surgery, which was performed on September 12, 2008, the surgery consisting of an open reduction internal fixation of the left calcaneal, with some reconstruction and bone grafting. A second surgery was performed on January 26, 2011 in which Dr. Bowerman performed a left foot subtalar fusion with removal of hardware. According to the Employee, this fusion was unsuccessful and has not taken to date. Yet another surgery was performed on June 15, 2011 consisting of a left ankle arthroscopy with removal of hardware, a synovectomy of the ankle and chondroplasty of the talus. 5. Following this third surgery, Dr. Bowerman assigned the Employee permanent work restrictions on September 23, However, a week later, on September 30, 2011, Dr. Bowerman released the Employee to full duty. It is based on this full duty release that the Employer/Insurer suspended the payment of income benefits to the Employee effective October 19, The extensive records of Dr. Bowerman s treatment of the Employee may be found at Exhibit D Turning initially to the issue of whether the Employer properly suspended the payment of temporary total disability benefits to the Employee based on this full duty release, I find they did, notwithstanding the fact that Dr. Bowerman had placed the Employee on permanent work restrictions the week before. While this would appear, as the Employee argues, to attenuate the work release as to render it null and void, I find the full duty work release was nonetheless a full duty release which served as a proper basis for the suspension of income benefits. While the apparent contradictions in Dr. Bowerman s opinions would appear to call his judgment into question, this issue will be more fully addressed later in this Award in the context of the Employee s request for a change in his authorized treating physician. 7. Following the suspension of income benefits, the Employee returned to Dr. Bowerman on February 2, 2012, Dr. Bowerman placed the Employee on light duty work restrictions. No work within these restrictions has been made available to the Employee by the Employer. Therefore, I find temporary total disability benefits to the Employee ought to have been recommenced as of that date. As income benefits owed to the Employee were not paid when due, I find he is entitled to temporary total disability benefits commencing February 2, 2012 and continuing until altered or terminated according to law, together with a 15 percent penalty on all income benefits not timely paid. O.C.G.A (e); Jenkins Enterprises, Inc. v. Williams, 122 Ga. App. 840, 178 S.E.2d 926 (1970). 8. In response to the Employee s argument that he is entitled to the recommencement of temporary total disability benefits effective February 2, 2012, the Employer/Insurer contend the Employee failed to perform a diligent, yet unsuccessful, search for suitable employment such as would satisfy the burden set out in Maloney v. Gordon County Farms, 265 Ga. 825, 462 S.E.2d 606 (1995), as recently interpreted in Maughon, supra. Assuming such a job search is even required, as the Employer/Insurer have not offered the Employee suitable light duty work, I respectfully disagree with this argument. While the Employee s job search has been less than optimal, his work experience is restricted to the performance of construction work. The Employee has performed a job search by checking with builders in his area and performing online searches, although he has received no interviews. While he has found work with two employers, he could only perform it for a short time before pain attributable to his work injuries caused him to leave these jobs. While it is injurious to the Employee s case that he

4 admittedly did not disclose his injuries to his employers, his job search met with such a lack of success, given that he had no interviews, that he never arrived at the point where he might be asked to disclose any previous injuries. Additionally, I find his testimony that he thought disclosing his injuries to prospective employers up front would damage his chances of gaining an interview and possibly employment to be credible and understandable under the circumstances. I also find that what little work he was able to find he could not perform because of his job injuries. (T ). Thus, it would become readily apparent to any employer hiring the Employee and observing him at work that he had suffered an injury rendering him incapable of performing work within his skill set. 9. Having performed three surgeries on the Employee, Dr. Bowerman is now recommending a fourth surgery. Following this recommendation, the Employee scheduled an independent medical examination to seek a second opinion with Dr. Paul Spiegl, which was performed on June 25, Dr. Spiegl also indicated that a fourth surgery was indicated. (See Exhibit C-3). The Employer/Insurer have indicated a willingness to pay for this surgery. The primary issue before me is which doctor should be authorized to perform this surgery. 10. The Employer/Insurer argue that the Employee is not entitled to a change in physician as he has not excercised his one-time right to a change of physician under their panel of physicians. While a copt of the panel is in evidence as Exhibit D-3, I find, based on my observations of him as he testified on the stand, the Employee to be credible, and accept his testimony that he was not explained his rights under the panel. Johnson v. Weyerhaueser Company, 231 Ga. App.627, 499 S.E.2d 916 (1998). Additionally, it is noteworthy that Dr. Bowerman is not on the panel, and the Employer/Insurer have allowed him to treat the Employee to date without protest. 11. The Employee has lost confidence with Dr. Bowerman and feels comfortable with Dr. Spiegl. Certainly, after three surgeries performed over the course of three years with no resolution of his heel problems and the apparently contradictory opinions offered by Dr. Bowerman on his ability to work, the Employee is understandably skeptical about undergoing a fourth surgery with Dr. Bowerman. While it is true, as the Employer/Insurer point out, that Dr. Spiegl s office is in the Atlanta area and Dr. Bowerman s office is closer to the Employee s residence, I find that the circumstances presented before me warrant a change of physician. As the Employee has confidence in Dr. Spiegl and would prefer the surgery be performed by him, I hereby appoint Dr. Paul Spiegl as the Employee s authorized treating physician The Employee seeks an assessment of attorney s fees based on what he contends has been an unreasonable defense of this claim. I disagree. While the Employee has prevailed on the question of whether he is entitled to a resumption of income benefits, I find the argument presented by the Employer/Insurer on this issue presents a question sufficient to allow me to find this issue was closely contested on reasonable grounds. Georgia-Pacific Corporation v. Sanders, 171 Ga. App. 799, 320 S.E.2d 850 (1984). Therefore, the Employee s request for assessed attorney s fees will be denied The Employer/Insurer also argue that there is nothing in the record to show that Dr. Spiegl is willing to accept the Employee as a patient. Presumably, the Employee would not have requested a change of physician to Dr. Spiegl if he were unwilling to treat him. Even so, should the Employer/Insurer be proven to be correct in their argument, this issue can be revisited at some later date.

5 Finally, the Employer/Insurer contend they are entitled to a credit for the full amount of permanent partial disability benefits paid to the Employee before late payment penalties are assessed. In support of their position, they offer a conclusory argument devoid of any citations to case law. In researching this issue, I find no basis on which the Employer/Insurer is entitled to such a credit. While the Employee was paid 22 ½ weeks worth of income benefits based on a 10 percent permanent partial disability rating to his lower extremity, this was paid to him at a time to him when benefits were not being paid to him on any other basis. Furthermore, the income benefits awarded under this award are to be paid commencing on a date after which the Employee s permanent partial disability rating, at least as assigned by Dr. Bowerman, 2 has been thoroughly paid out. 3 Apparently, the Employer/Insurer are drawing a rough equivalency between permanent partial disability benefits and temporary total disability benefits, though the Court of Appeals has recently noted a distinction between these two classes of benefits in holding that an advance to be credited against the payment of future permanent partial disability did not count as income benefits in determining whether an Employer/Insurer has filed a timely claim for reimbursement from The Subsequent Injury Trust Fund. Subsequent Injury Trust Fund v. City of Atlanta, 310 Ga. App. 581, 713 S.E.2d 706 (2011). Applying this decision to the facts of this claim, a credit for permanent partial disability benefits paid, whether against temporary total disability benefits or late payment penalties, is not warranted. Based on the foregoing, the Employer/Insurer s claim for a credit for permanent partial disability benefits paid to the Employee must be denied. 14. While I have denied the Employee s request for assessed attorney s fees, his counsel has submitted his fee contract for approval, I find his fee contract, which calls for a contingency fee of 25 percent of any benefits obtained for the Employee through the efforts of his counsel, constitutes the reasonable value of his services. The Employer/Insurer are therefore to pay to counsel to the Employee 25 percent of all income benefits payable under this Award, including temporary total disability benefits and late payment penalties, to be deducted from benefits owing to the Employee. AWARD Based on the foregoing, the Employer/Insurer are hereby ordered to pay to the Employee temporary total disability benefits commencing February 2, 2012 and continuing until altered or terminated according to law, together with penalties on all benefits not timely paid in the amount of 15 percent. From the income benefits payable to the Employee under this Award, the Employer/Insurer are to deduct 25 percent as the reasonable fee for the services of the Employee s counsel, to be deducted from the benefits owing to the Employee. The Employee s request for a change of physician is GRANTED. Dr. Paul Spiegl is hereby appointed the Employee s authorized treating physician. The Employer/Insurer are ordered to pay for such treatment of the Employee s compensable injuries as meets the standards set out in O.C.G.A (a). In the event a dispute should arise about whether any such treatment meets the standard, either party may request a hearing to resolve it. The Employee s request for assessed attorney s fees is DENIED. The Employer/Insurer request for a credit against income benefits payable under this award for permanent partial disability benefits previously paid to the Employee is DENIED. 2 Dr Spiegl has assigned the Employee a PPD rating of twenty-seven percent (27%) to his left lower extremity. (See Exhibit C-3, p.4). 3 The Employee s permanent partial disability benefits were paid to him in a lump sum on August 18, 2009, with a later payment on January 27, 2010 to correct the previous lump sum payment. I take judicial notice of the Board s file in this claim. Coosa Baking Co. v. Thomas, 165 Ga. App. 313, 299 S.E. 2d145 (1983).

6 IT IS SO ORDERED, this the 19th day of September, This order is electronically signed and approved. Charles G. Spalding ADMINISTRATIVE LAW JUDGE

7 Appeal 270 Peachtree Street, N.W. Atlanta, GA This appeal by the Employer/Insurer is before the Appellate Division for review of an award by Judge Spalding, dated September 19, No cross-appeal was filed in this case. This appeal was argued orally before the Appellate Division on December 04, After a review of the record as a whole, as well as the arguments presented, the Appellate Division now adopts the findings of fact, conclusions of law, and award of Judge Spalding as its own. FINDINGS OF FACT AND CONCLUSIONS OF LAW After a review of the record as a whole, we find the administrative law judge was, in this case, in the best position to determine the credibility and weight of the evidence in the record. See Johnson v. Weyerhaeuser Company, 231 Ga. App. 627, 499 S.E.2d 916 (1998); Metro Interiors, Inc. v. Cox, 218 Ga. App. 396, 461 S.E.2d 570 (1995); Coats & Clark, Inc. v. Thompson, 166 Ga. App. 669, 305 S.E.2d 415 (1983). Consequently, as to the enumerations of error and arguments presented by the Employer/Insurer, we find no error with the administrative law judge s award. Therefore, the findings of the administrative law judge in this matter are hereby accepted by the Appellate Division as such findings are supported by a preponderance of competent and credible evidence contained within the record on review. See O.C.G.A (a). The Appellate Division adopts the conclusions of law of the administrative law judge as such reflect an appropriate application of the Act to the findings of fact. AWARD Based upon the foregoing, the Appellate Division adopts the award of Judge Spalding, dated September 19, 2012, as its award. IT IS SO ORDERED, this the 30th day of January, Concurring: Presiding Judge Richard S. Thompson and Judge Stephen B. Farrow. :rb This order is electronically signed and approved. Elizabeth D. Gobeil/s. Judge Appellate Division