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Forthcoming Opinions

November 2, 2012

On Monday, November 5, in addition to hearing oral argument, the Supreme Court of Georgia will also release opinions in 13 cases, two of which are within our coverage. Brief summaries of the cases are below and we will update on Monday morning with summaries of the released opinions.


This case involves faxed advertisements sent to businesses. In 2003, Fastsigns sued AHS, a construction company, for violations of the Telephone Consumer Protection Act (TCPA) related to the “junk faxes” that were being sent to its Fastsigns’ fax machine. The trial court certified a class consisting of every person to whom AHS sent the particular faxed advertisement received by Fastsigns. The Court of Appeals affirmed the class certification in 2007.

After remand, the case proceeded to the merits of the TCPA claim. After a trial, the court determined that AHS sent 306,000 unsolicited faxes in violation of the TCPA and further found it had done so in willful violation of the statute. The court then awarded $1,500 per fax, or $459 million, to Fastsigns and AHS appealed.

The Court of Appeals (McFadden, Phipps, Andrews) unanimously vacated the trial court’s ruling, finding that even assuming the evidence showed that AHS sent 306,000 faxes, the trial court improperly based its damage calculation on the numbers of faxes “sent” instead of the number “received.” The panel noted that while some courts do not require receipt to award damages, other courts including the Georgia Supreme Court do. Because the damage award was based on sending instead of receiving, the trial court’s judgment was vacated and remanded.

On February 6, 2012, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Did the Court of Appeals err in finding that recovery under the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (b) (1) (C) et seq., depends upon proof that an unsolicited advertisement sent by facsimile was actually received by the plaintiffs?

The case was heard at oral argument on May 7, 2012.


This case began in February 2006, when McRae, an employee of Arby’s Restaurant Group, accidentally drank a cup of lye that had been left in the break room, causing third degree burns to her esophagus.  The cup in which the lye was placed was similar to a cup she had been using.  Arby’s did not contest her worker’s compensation claim and began paying benefits in April 2006.  In late 2009, McRae’s doctor determined she had reached maximum medical improvement and was left with a 65% permanent body impairment. McRae requested a hearing on temporary total disability and permanent partial disability. Arby’s attorneys tried to schedule an consultation with the treating physician, but she refused without express permission of her patient, which McRae withheld. The ALJ required McRae to give the authorization and removed her claim from the hearing calendar when she refused to do so. She appealed this order, claiming that the Worker’s Compensation Act does not require her to authorize ex parte communication between opposing counsel and her physician and and that her right to medical privacy is protected under Georgia law and the Health Insurance Portability and Accountability Act (HIPAA). The superior court upheld the ALJ decision and McRae appealed.

The Court of Appeals reached a 4-3 decision reversing the ALJ decision (Barnes, Phipps, Ellington, Adams concurring; Miller, Doyle, Blackwell dissenting). The majority determined that the legislature did not contemplate ex parte communications when it drafted O.C.G.A. § 34-9-207. The provision was designed to require the release of relevant “medical records and information,” it does not require the authorization of an ex parte communication. The majority further found that the provisions of HIPAA do apply to worker’s compensation proceedings, but that they only permit disclosure necessary to comply with state law. Two judges filed dissents. Judge Miller, joined by Judge Doyle, would have found that the intent of the statute was to streamline the process of access to claims and distinguished the civil litigation context from the Worker’s Compensation Context. Judge Blackwell, joined by Judges Miller and Doyle, would have found that the provisions of the statute require disclosure not only of medical records but also “information . . . related to the examination, treatment, testing, or consultation concerning the employee,” that refers to information beyond mere documents.

On April 24, 2012, the Supreme Court granted the petition for certiorari in a 4-3 vote (Hunstein, Carley, Benham dissenting) to consider the following issue:

  1. Whether the Court of Appeals properly interpreted OCGA § 34-9-207.

The case was heard at oral argument on July 10, 2012.


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