Susan J. Sadow, P.C. Office

Victory for Heather Froy!

Ms. Froy recently appeared before the Honorable Kimberly Boehm to fight for the rights of one of her clients. The client, (who we will refer to as ‘Mr. Smith”), began receiving workers’ compensation benefits and medical treatment after his accident and then all of his benefits were suddenly suspended. The first legal issue at the hearing was whether the Employer/Insurer had unreasonably suspended her client’s income benefits and medical treatment. The second issue involved the standard of “newly discovered evidence”. The final issue was whether her client had intentionally misrepresented his physical condition on his employment application. Judge Boehm ruled in favor of her client on all three issues and the Award was so strong that the Employer/Insurer chose not to appeal!

The facts of the case involved Mr. Smith who was injured while jumping out of the cab of a truck that had started shifting from the loading dock. He jumped in order to help his co-worker who was about to be hurt. As a result of the jump, Mr. Smith injured his left foot and low back.

Without conducting any investigation whatsoever, the insurance company denied Mr. Smith’s claim on the basis that he was not performing his job duties when he jumped out of the truck to assist his co-worker. Ms. Froy promptly filed a hearing request. Before any discovery had been completed, the insurance company agreed to accept the claim and to pay income and medical benefits to Mr. Smith. Mr. Smith began medical treatment. However, within two months, the Employer/Insurer filed a new denial of the claim based upon alleged “newly discovered evidence” and they also asserted a Rycroft defense (the intentional misrepresentation of his physical condition).

The Employer/Insurer alleged that Mr. Smith had injured his left foot 10 years before and had been placed on work restrictions. They claimed that Mr. Smith failed to properly disclose this injury on his job initial application when he stated that he was capable of performing all of the essential functions of the job. At no time had the Employer ever asked Mr. Smith whether he had any prior injuries. At the hearing, the employer’s representative testified that Mr. Smith was fully able perform all of the physical aspects of his job before this accident took place.

When an insurer controverts a claim after 81 days, it must either be based on a “change in condition” for the better or “newly discovered evidence”. Newly discovered evidence must likely have produced a different result had the evidence been procurable within 60 days of the due date of the first payment of benefits, and it must be shown that the evidence was not known to the Employer/Insurer and could not have been secured by the Employer/Insurer by reasonable diligence during that time period. Anderson v. Araguel, Sanders, Carter & Swain, 163 Ga. App. 610, 295 S.E. 2d. 750 (1982). In Mr. Smith’s case, the Employer/Insurer relied on the fact that Ms. Froy’s client had previously injured his left foot and they obtained an old medical report documenting the foot injury after they commenced weekly benefits. However, at trial, Ms. Froy was able to discredit the claims adjuster to show that she easily could have obtained this information, but had failed to do so, during her initial investigation.

The Judge found that the Employer/Insurer did not prove that the medical evidence was not known to them at the time benefits were voluntarily commenced. Further, she found that with due diligence, the information on which the Employer/Insurer based their subsequent Rycroft defense could have been secured prior to their decision to commence her client’s weekly benefits. The Judge held that the suspension of benefits was improper. With respect to the alleged Rycroft defense, the Judge held that the Employer/Insurer failed to meet the criteria to prove such a defense finding that Mr. Smith was a credible witness and he did not knowingly and willfully misrepresent his physical condition when he applied for the job. Mr. Smith was awarded all of his past due income benefits plus penalties as well as medical care for both his left foot and low back. Ms. Froy prevailed on all aspects of this case and her client received the medical treatment and weekly benefits that he so justly deserved!