An injured employee in Georgia does not need to show that his reason for refusing light-duty work is injury-related, the Georgia Court of Appeals found in a decision that could continue to prove tricky for employers and insurers, especially during the next pandemic.
“I do not believe this case creates an opening for an onslaught of new exposure. However, it is certainly something to keep in mind when both sides are crafting their arguments before the courts,” said Sara Phillips, a workers’ compensation defense attorney with the Swift Currie law firm, in Atlanta.
The appellate court early last year, in John Taylor vs. Argos USA, overruled the state Board of Workers’ Compensation. The court agreed with the injured worker’s lawyer and the Georgia Legal Foundation that the board had erred by creating a new mandate that a worker’s reason for refusing to return to work has to be linked to the initial injury.
“Simply put, there is no requirement that an employee’s refusal to return to work correlate to the work injury in order for the employee to be justified in refusing,” the Court of Appeals wrote, saying the comp board had relied on an “erroneous theory of law.”
Taylor had been a truck driver for Argos for more than 30 years. He sustained injuries in a road accident in 2019 and was granted temporary partial disability benefits. The employer later sent him to a nonprofit organization for full-time, light-duty work while he recovered.
But when the COVID-19 pandemic began sweeping the planet, the nonprofit closed its doors in March 2020, the court explained. A month later, Argos offered Taylor a light-duty job at its trucking operation facility.
But Taylor’s lawyer explained that the truck driver was 67 years old at the time, was diabetic, and was “really scared” of catching COVID. When the employer did not provide adequate information about its pandemic safety protocols, Taylor declined to return to the facility.
Two days later, Argos terminated the longtime employee for what the company called “job abandonment,” the court opinion noted. Taylor then applied for temporary total disability benefits. After a hearing, an administrative law judge awarded Taylor continuing TTD benefits.
Argos and its insurance carrier appealed to the workers’ compensation board, which overruled the ALJ and found that the driver was not justified in refusing the light-duty work.
“The preponderance of competent, credible evidence shows that [Taylor’s] individual health and safety concerns during the pandemic were personal to [Taylor] and unrelated to his compensable work injury,” the board wrote in its decision.
The Superior Court in Dekalb County affirmed the board’s ruling. Taylor in 2024 petitioned the state appeals court to review. A year later, the court struck down the lower court and the comp board, sparking some concern for employers and carriers around the state.
The appeals court appeared to base its decision at least partly on the reasoning of the Georgia Legal Foundation, a nonprofit organization that assists injured workers in litigation. The Foundation had penned a friend-of-the-court brief that the appeals court called “thoughtful and helpful.”
The Foundation’s amicus attorney, David Garner, explained that during the COVID scare as many as 42 people a day were dying in Georgia from the disease. By June 2020, the state’s governor had lifted some shelter-in-place orders, but not for people with underlying medical conditions, including diabetes.
Garner argued that Georgia workers’ comp law requires only that an employee’s refusal to work must relate, in some manner, to his physical capacity or his ability or skill to perform the job. The comp board’s appellate division needlessly added “a new requirement that the refusal must relate to the work injury … in order to be justified,” the Legal Foundation’s brief reads.
“Caselaw does not support such a requirement, nor does the plain language of the statute,” Garner wrote.
Previous court decisions have also allowed workers to refuse light duty if conditions of the job, such as relocation or travel, would disrupt their lives. Few things in life would disrupt the employee’s life “more than a pandemic disease that could end his life, and which rendered him subject to governmental restrictions that restricted his ability to move freely in society,” the amicus brief argued.
On remand, the Board of Workers’ Compensation appellate division recently issued an unexpected decision that complied with the appeals court—to a degree. It found that the claimant’s refusal was still unjustified, but only because Taylor had testified that his attorney had not informed him of the light-duty offer.
Employers, carriers and their attorneys around the state have now had time to contemplate the decisions.
“I do not believe the court’s decision in Argos necessarily warrants a significant shift in TTD exposure or handling protocols. However, it does warrant some additional understanding and training,” said Phillips, the Swift Currie lawyer who was not directly involved with the litigation.
While Taylor’s refusal was framed largely by the COVID disease, other scenarios may arise that injured workers and their lawyers may rely on in refusing to return to work.
If comorbidities are cited, then more information is needed, Phillips said.
“In this post-Covid era, if a claimant were to refuse a light-duty position due to diabetes, as an example, I think the next line of questioning claims handlers should ask is when was the worker diagnosed.” And how does that condition impact the worker’s ability to perform the offered job when presumably it did not matter before the work injury, she said.
That can help establish if some other reason exists for why the position is being refused or why the condition impacts the worker’s ability to perform the offered role.
“Undoubtedly, the court’s reasoning in Argos makes the analysis of whether a refusal of light duty work somewhat more complex, but it is not insurmountable and can likely be remedied with a bit more investigation,” Phillips said.
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