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New Grant of Petition for Certiorari in a Civil Case

February 24, 2011

The Supreme Court has granted one new petition for certiorari in a civil case in the last few weeks.  A brief summary of the issues involved is below, along with a link to the filings surrounding the petition.

S10G1899. Mulligan v. Selective HR Solutions, Inc.

This case originated from a worker’s compensation claimed filed by Mulligan against her employer for re-injury to her back.  Mulligan originally injured her back on the job in 2005, and after treatment, returned to work in 2006.  In 2007, Mulligan fell at home and re-injured her back.  Doctors eventually determined that another back surgery was required and sent the form requesting advance authorization to Selective (Rule 205).  Selective said it would only authorize surgery with a second opinion.  The ALJ who heard the case denied Mulligan’s claims, and the Board of Worker’s Compensation affirmed.

The trial court affirmed the Board’s decision that the re-injury was not a “change in condition” that was compensable under Georgia law, but overturned the decision on compensation, finding that the insurer should pay for the cost of surgery related to the injury because of the violation of Board Rule 205 related to responding to a request for advance authorization of treatment.  Both parties appealed and the Court of Appeals granted the discretionary applications of each.

The Court of Appeals (Miller, Phipps, Johnson) partially affirmed and partially reversed the superior court decision, effectively reinstating the original Board determination.  The Court found that the superior court incorrectly interpreted Board Rule 205 as substantive instead of a procedural, burden-shifting requirement, and that the injury was not compensable.

Mulligan petitioned for certiorari, arguing the Court of Appeals erred by holding Rule 205 was procedural instead of substantive.  Selective responded, supporting the Court of Appeals decision that Rule 205 only applies to compensable claims.  Mulligan also filed a supplemental brief in support of her petition.

The Medical Association of Georgia and the Georgia Legal Foundation filed amicus briefs in support of Mulligan’s petition for certiorari.

On February 7, 2011, the Supreme Court unanimously granted the petition for certiorari to review the following issue:

  1. Did the Court of Appeals err in concluding that the State Board of Worker’s Compensation exceeded its authority in promulgating Rule 205?

The case has been assigned to the May 2011 oral argument calendar.

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