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ZURICH AMERICAN INSURANCE COMPANY v. DICKS3/15/1996
June Dicks sued Zurich American Insurance Company, her former
employer's workers' compensation insurer. Dicks suffered a work-related injury and filed a complaint, sounding in tort, alleging that Zurich intentionally and wrongfully terminated her medical benefits, thereby aggravating her injuries. Zurich moved for summary judgment on the ground that Dicks' complaint was barred by the exclusive remedy provision of the Workers' Compensation Act. The trial court denied the motion, and we granted Zurich's application for interlocutory appeal.
The facts are not disputed. On September 26, 1990, Dicks suffered a work-related injury and Zurich authorized medical treatment. Dicks' treating physician ordered her not to return to work until he released her to do so. On June 21 of the following year, Zurich ordered Dicks to be examined by Dr. Basil Griffin, Jr., who was not one of her treating physicians. Dr. Griffin concluded that Dicks "should be either terminated from her job or put in a work hardening program where she can get back to work. . . ." Apparently following Dr. Griffin's advice, Dicks' employer suspended medical benefits and terminated her from her job on August 29. As a result of the suspension of benefits, Dicks on October 21 ceased physical therapy which had been ordered by her treating physician. She resumed treatment 71 days later, but in the opinion of her treating physician, "the more than two-month-long delay in treatment exacerbated medical condition, greatly worsened her symptoms, adversely affected her ability to be rehabilitated, caused additional pain behavior and substantially affected her permanent partial impairment rating."
The ALJ ordered that all benefits be restored to Dicks effective August 29, and upon finding that Zurich's defense of the claim was unreasonable, awarded attorney fees under OCGA § 34-9-108(b)(2).
The sole issue is whether Dicks' common law claim against Zurich is barred by the exclusive remedy provision of the Act.
OCGA § 34-9-11(a) provides in part that " he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee . . . at common law or otherwise, on account of such injury, loss of service, or death. . . ." Not all employee claims against employers for intentional injuries are barred by OCGA § 34-9-11(a). An insurer might be held liable for certain egregious torts, as pointed out in 8 ALR4th 902, 905 (1981). But where the Act provides a penalty for delayed benefit payments, a claim based on the delay is barred by the exclusive remedy provision.
In Bright v. Nimmo, 253 Ga. 378, 381 (320 S.E.2d 365) (1984), the Supreme Court held that the intentional delay of workers compensation payments does not give rise to an independent cause of action against the employer or its insurer for financial injury. It expressly left open the question of whether the employee could recover in tort for "an alleged intentional physical injury by the employer." Id. What
clearly is foreclosed is additional recovery for the delay itself in making the monetary payments. The reason given by the court is that the Workers' Compensation Act provides penalties for delay, so the exclusivity feature of the Act excludes the employee's use of common law remedies to obtain penalties in addition to the "delinquency charge" and attorneys fees provided for in the Act.
In Aetna Cas. &c; Co. v. Davis, 253 Ga. 376 (320 S.E.2d 368) (1984), an employee sued her employer's workers' compensation insurer for tortious breach of contract alleging that the insurer breached a board approved settlement agreement by failing to pay medical benefits awarded un
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