United States Court of Appeals, Eleventh Circuit.
No. 94-9459.
Eric DOSS, Plaintiff-Appellee,
v.
FOOD LION, INC., Defendant-Appellant.
May 21, 1996.
Appeal from the United States District Court for the Southern
District of Georgia. (No. CV 293-145), Anthony A. Alaimo, Judge.
Before EDMONDSON, DUBINA and BARKETT, Circuit Judges.
BARKETT, Circuit Judge:
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA PURSUANT TO
ARTICLE 6, SECTION 6, PARAGRAPH 4 OF THE GEORGIA CONSTITUTION.
TO THE SUPREME COURT OF GEORGIA AND ITS HONORABLE JUSTICES:
This case comes to the United States Court of Appeals for the
Eleventh Circuit on appeal from the district court's denial of Food
Lion's motion for summary judgment in this diversity action brought
by Eric Doss. Food Lion had employed Doss as a stock clerk, and
was responsible under the Georgia Worker's Compensation Act,
O.C.G.A. § 34-9-1 et. seq. ("the Act"), for providing his health
care after a co-worker injured Doss by hitting him in the head with
a box of chocolates. After Food Lion delayed authorizing treatment
of Doss' psychological and psychiatric injuries, Doss brought this
common-law tort action alleging that such delay constituted an
intentional aggravation of Doss' work-related injuries.
The issue in this case is whether Doss' claim is actionable
as an independent tort under Georgia law, or barred by the
exclusive-remedy provision of the Workers' Compensation Act. The
district court certified, and we granted, an order for immediate
review of this issue as one involving "a controlling question of
law as to which there is substantial ground for difference of
opinion." 28 U.S.C. § 1292(b). We have determined that this
question of Georgia law is dispositive of this case, but unanswered
by the clear controlling precedent of the Supreme Court of Georgia.
We therefore certify this question for resolution by the highest
court of Georgia.
Under O.C.G.A. § 34-9-11(a), "the Georgia Workers'
Compensation Act is now the exclusive remedy for injuries sustained
by an employee during the course of employment resulting from the
negligence of a co-worker." Dickey v. Harden, 202 Ga.App. 645,
646, 414 S.E.2d 924 (1992). The Act also bars an independent
action for intentional torts committed by one worker against a
co-worker, unless the tortious act was committed for personal
reasons unrelated to the conduct of the employer's business.
Murphy v. ARA Svcs., 164 Ga.App. 859, 862-63, 298 S.E.2d 528
(1982). In Johnson v. Hames Contracting, Inc., 208 Ga.App. 664,
431 S.E.2d 455 (1993), the Georgia Court of Appeals held that
"[w]hen an employee's injuries are compensable under the Act, he is
absolutely barred from pursuing a common law tort action to recover
for such injuries, even if they resulted from the intentional
misconduct on the part of the employer." Id. at 667, 431 S.E.2d
455.
The Act defines "injury" or "personal injury" as including
"the aggravation of a preexisting condition by accident arising out
of and in the course of employment." O.C.G.A. § 34-9-1(4). Doss
contends that the Act does not provide a remedy for the intentional
physical aggravation of his work-related injury. He argues that
because the Act provides no mechanism by which a claimant may be
compensated for the physical worsening of a work-related injury
sustained due to an employer's unreasonable delay in authorizing
medical treatment, such a claim falls outside the purview of the
Act. The Georgia case law, however, is unclear on whether the Act
bars Doss from bringing an action in tort for physical aggravation
of his work-related injury where Food Lion has intentionally
delayed authorizing his medical treatment.
Although a "remedy provided by th[e] statute is exclusive
within the field of its operation ... it does not exclude redress
in cases to which it is not applicable." Covington v. Berkeley
Granite Corp., 182 Ga. 235, 237, 184 S.E. 871 (1935). In
Covington, the Supreme Court of Georgia went on to say that "the
right to bring an ordinary action for damages is not excluded by
the statute as to injuries which do not fall within its terms."
Id. at 238, 184 S.E. 871 (quotation omitted). For example, the
Georgia Court of Appeals in Jim Walter Homes v. Roberts, 196
Ga.App. 618, 396 S.E.2d 787 (1990), held that although the
claimant's "original injury occurred within the scope of her
employment," her alleged "intentional physical injury resulting
from [the employer's] refusal to authorize necessary medical
treatment.... sets forth a common law cause of action which the
trial court had jurisdiction to decide." Id. at 620-21, 396 S.E.2d
787. In Maulden v. Liberty Mutual Insurance Co., 824 F.Supp. 212
(1992), the district court reasoned from Jim Walter Homes that a
workers' compensation claimant could pursue her compensation
carrier also for a wrongful delay in authorizing her medical
treatment, stating that "an action for physical aggravation of an
injury is not precluded by the ... Georgia Worker's Compensation
Act." Id. at 214.
Food Lion argues that Doss is precluded from bringing a
separate action in tort based in part upon the Supreme Court of
Georgia's holding in Bright v. Nimmo, 253 Ga. 378, 320 S.E.2d 365
(1984). In Bright, the Court held that an employer's intentional
delay in the payment of income benefits is an "intentional
financial injury" exclusively remedied by O.C.G.A. § 34-9-221(e).
Doss contends that he has not sustained an intentional financial
injury, but instead has sustained an aggravation of his
work-related injuries due to the intentional delay of Food Lion in
authorizing his medical treatment. Doss points out that Bright
distinguishes an employer's intentional financial injury from an
intentional physical injury such as Doss claims here:
[W]e are faced not with an alleged intentional physical injury
by the employer but with an alleged intentional financial
injury. The defendants argue that OCGA § 34-9-221(e) provides
the exclusive remedy available to plaintiff. That subsection
... deals solely with income benefits (as opposed to benefits
for medical, surgical, hospital, etc., care).
Bright, 253 Ga. at 381, 320 S.E.2d 365, cited in Jim Walter Homes,
196 Ga.App. at 620-21, 396 S.E.2d 787.
Food Lion responds, however, that the Supreme Court of
Georgia's decision in Aetna Casualty & Surety Company v. Davis, 253
Ga. 376, 320 S.E.2d 368 (1984), decided on the same date as Bright,
is controlling. Aetna Casualty held that a workers' compensation
claimant was precluded from bringing an independent action for
breach of contract and tortious breach of contract because the
Act's provision of attorneys' fees, O.C.G.A. § 108(b), is a
"penalty for an insurer's controverting medical payments without
reasonable grounds and therefore the employee's use of common law
remedies is excluded." Id. at 377-78, 320 S.E.2d 368.
Nonetheless, the Supreme Court of Georgia has not squarely
addressed the issue of whether a claim for physical aggravation of
a work-related injury resulting from an employer's intentional
delay in authorizing medical treatment is outside the purview of
the Workers' Compensation Act, and thus gives rise to an
independent cause of action against the employer or its insurer.
Accordingly, we certify the following question to the Supreme
Court of Georgia for resolution:
1. DOES GEORGIA LAW RECOGNIZE AN INDEPENDENT CAUSE OF
ACTION APART FROM ANY REMEDY AVAILABLE UNDER THE GEORGIA
WORKERS' COMPENSATION ACT WHERE AN EMPLOYER AND/OR INSURER HAS
INTENTIONALLY DELAYED AUTHORIZING MEDICAL TREATMENT TO WHICH
AN EMPLOYEE IS ENTITLED UNDER THE ACT AND WHERE SUCH DELAY HAS
EXACERBATED A WORK-RELATED PHYSICAL INJURY?
The particular phrasing of this question is not intended to
limit the Supreme Court of Georgia in its consideration of the
various problems and issues posed by the entire case as it
perceives them to be. In order to assist the determination, the
entire record and the briefs of the parties shall be transmitted to
the Supreme Court of Georgia.
QUESTION CERTIFIED.