Verdict - Spring 2016 - (Page 46)

> WORKERS' COMP Recent Developments BY DYLAN BESS EXCLUSIVE REMEDY PROVISION OA moved for summary judgment and the trial Sturgess v. OA Logistics Services, Inc. et al., granted it in favor of both parties on the grounds A15A2139, Court of Appeals of Georgia, March that the exclusive remedy provision in O.C.G.A. 10, 2016. § 34-9-11 bars Sturgess's tort claims against In this wrongful death action, the Court held them. Sturgess appealed. that the trial court properly granted the employer The issue before the Court was whether summary judgment and correctly ruled that the Zephyrine's death arose out of and in the course worker's injury resulted from an accident arising of his employment such that it is covered by the out of and in the course of employment such that exclusive remedy provision. It was undisputed a tort claim against the employer is barred by that Zephyrine's death arose in the course of the exclusive remedy provision of the Georgia his employment because it occurred while he Workers' Compensation Act. was on duty performing his job functions at his OA contracted with StaffChex to provide employment location. temporary workers for a warehouse OA owned In determining whether Zephyrine's death and operated. On February 16, 2012, Christopher arose out of his employment, the Court applied Lema applied for a position with Staffchex using the position risk doctrine as stated in Chaparral an alias. Certain portions of his application were Boats, Inc. v. Heath, 269 Ga. App. 339 (2004). This incomplete, and the photo ID he presented doctrine holds that an accidental injury arises when applying was different from his actual out of the employment when the employee appearance. Although OA required StaffChex proves that is work brought him within range to perform background checks on each appli- of the danger by requiring his presence in the cant before they were employed, Lema was locale when the peril struck, even though any arrangement was memorialized in a contract, allowed to begin work before his background other person present would have also been OA's needs fluctuated, StaffChex provided OA check was returned. The check on the alias injured irrespective of his employment. staff as necessary, and Zephyrine was not eventually showed no criminal history, although Lema had a felony criminal record. Here, because Zephyrine's employment placed him in a locale that unfortunately considered a regular long-term employee at the time he was killed. On February 24, 2012, before Lema's back- exposed him to being shot by Lema, the Court ground check was returned, Lema was working concluded that there was a causal connection PHYSICIAN STATEMENTS at the warehouse alongside Nickifor Zephyrine. between the workplace and Zephyrine's death - PRIVILEGED Zephyrine's forklift ran out of fuel so he waited and thus Zephyrine's injury resulted from an Jasarevic v. Foster, A15A2218, Court of outside an office for a supervisor. As Zephyrine accident arising out of and in the course of his Appeals of Georgia, January 26, 2016. waited, Lema entered the office and attempted employment. In this claim for libel filed by a patient to kiss a female employee who resisted. Lema Sturgess also argued that even if the injury against a doctor, the Court found that the then walked out of the office, produced a hand- was an accident covered by the exclusive rem- patient could not possibly introduce evi- gun, shot Zephyrine in the back of the head, edy provision, that provision does not apply dence, privileged statements by the doc- re-entered the office and sexually assaulted here because StaffChex is not a traditional tor, within the framework of the complaint the female employee. According to the female employer and does not meet the definition of that would authorize a grant of the relief the employee, Zephyrine had not been aware of the a "temporary help contracting firm," which is patient sought. assault, had not attempted to intervene, and had deemed to be a statutory employer for pur- In 2008, Jasaveric suffered an on-the- not interacted with Lema previously. poses of the Workers' Compensation Act. The job injury. The State Board appointed Dr. Zephyrine's mother, Maria Sturgess, sued Court found this argument to be without merit Foster as the authorized treating physi- OA and StaffChex claiming that they negligently because Zephyrine worked at OA under OA's cian. In 2010,Foster released Jasaveric to conducted the hiring process, resulting in the general supervision as part of StaffChex's reg- full duty, but continued treatment. In a 2012 hiring of a convicted felon who attacked his ular business of contracting with third parties narrative, Dr. Foster indicated that Jasaveric co-workers, killing Zephyrine. StaffChex and to provide employees on a temporary basis, this had made threatening statements during an 46 Georgia Trial Lawyers Association

Table of Contents for the Digital Edition of Verdict - Spring 2016

President’s Message
GTLA at 60: A Conversation with Tommy Malone
Law Practice and Cloud Computing: Staying Ethical in a Digital World
14 Years in the Making: Justice Delayed, but Not Denied
What is the Plaintiff’s Burden in Proving the Value of Medical Expenses?
An Introduction to Daycare Negligence Cases
Diminished Value Claims: Not Just for Cars Anymore
Seeking Justice for Victims of Child Sexual Abuse
Case Updates: What’s New?
Workers’ Comp: Recent Developments
Civil Justice PAC Contributors
Champion Members
Welcome New GTLA Members!
Notes: What’s New with GTLA Members
Index to Advertisers/

Verdict - Spring 2016