A Just & Noble Cause: The Georgia Story of Workers' Compensation

to form the Workers’ Compensation section of the Georgia Bar Association.

Since the law is relatively new, the

T

he legal system of compensating workers

injured on the job has a history rich with

drama, starting from the time it emerged a hundred years ago in Europe and continuing as it moved into the United States, eventually bracketing an industrialized world.

In the nearly one hundred years since the world began to acknowledge that both workers and employers needed protection, the law—and those practicing and overseeing it—has gone from the simple to the complicated, from the obvious to the unconceivable. This book traces that history, telling the story of the struggles by attorneys on both sides to bring equity and thoughtfulness to a body of law that is both ever-more fluid and increasingly complex.

names of those instrumental in the refinement of Georgia’s laws are still well-known; the tales they tell or the stories told about them are gripping, amusing, and often gut-wrenching.

They include intrigue, pathos, and a high level of political maneuvering— just the sort of thing Georgia politicians have been known to enjoy. And the stories of these lawyers’ clients will, in turn, make you smile or cry.

The book also chronicles the rise of Kids’ Chance, which began as an ache in one man’s heart and has grown to be a model of charity across the United States.

Georgia was the first state in the country to give the worker even minimal protection; sixtyfive years later, it passed a full scale compensation act that remains the basis for the law that provides protection to both workers and employers.

The book describes the day in 1920 when the Georgia State Legislature emerged after an allnight battle to enact a “workman’s compensation

BOOK DEVELOPMENT BY: Bookhouse Group, Inc. 818 Marietta Street Atlanta, Georgia 30318 (404) 885-9515 www.bookhouse.net

law.” It goes on to depict the emergence of battlescarred legal “road warriors” who began to practice in this new field and who then had the prescience

Printed in the United States of America Cover Design by Jill Dible

A JUST & NOBLE CAUSE

A JUST & NOBLE CAUSE The Georgia Story of Workers’ Compensation

Jan Pogue and Tom Poland

Copyright © 2005 by the Workers’ Compensation Section of the State Bar of Georgia State Bar of Georgia Workers’ Compensation Section 104 Marietta Street NW Suite 100 Atlanta, Georgia 30303 All rights reserved. No part of this book may be reproduced or transmitted in any form, or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the Workers’ Compensation Section of the State Bar of Georgia, Atlanta, Georgia.

A Just & Noble Cause—The Georgia Story of Workers’ Compensation was developed by: Bookhouse Group, Inc. 818 Marietta Street NW Atlanta, Georgia 30318 404-885-9515 www.bookhouse.net

EDITOR:

Rob Levin

EDITORIAL ADVISOR:

WRITERS:

Mark Gannon

Jan Pogue & Tom Poland

COPYEDITING AND INDEXING:

ARCHIVAL RESEARCH:

Catherine Lewis, Ph.D., and Jill Sauser

BOOK AND JACKET DESIGN:

NEW PHOTOGRAPHY:

Bob Land

Jill Dible

Thomas S. England

Archival images were provided courtesy of the Atlanta History Center, the United States Library of Congress, Emory University School of Law, Kids’ Chance, Inc., Bookhouse Group archives, Corbis, Marvin Price, and the many families and individuals whose lives have been involved with workers’ compensation.

Table of Contents FUNDING CONTRIBUTORS . . . . . . . . . . . . . . . . . . . . . 8 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 FOREWORD Looking into the Twenty-First Century . . . . . . . . . . . 11 CHAPTER ONE

Amid the Ashes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CHAPTER TWO

The Early Days—Road Warriors and Politics . . . . . . . 29 CHAPTER THREE

The Years of Great Change . . . . . . . . . . . . . . . . . . . . . 41 CHAPTER FOUR

Defining Moments of the Law—and Beyond . . . . . . . . 55 CHAPTER FIVE

Kids’ Chance—Nothing Left Undone . . . . . . . . . . . . . . 65 AFTERWORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

Early laborers in Georgia were oftentimes right off the farm, untrained, and working in unsafe factories. Today, companies realize the value of a safe work environment, job training, and providing safety gear, such as the goggles and gloves this Georgia-based bedding manufacturer worker is wearing.

A Just & Noble Cause—The Georgia Story of Workers’ Compensation Would Not Have Been Possible Without the Support of the Kids’ Chance Foundation and the Generous Financial Assistance of the Following Professionals Who Believe in Its Mission.

MAGNA CUM LAUDE DONORS: Drew Eckl & Farnham, LLP Savell & Williams, LLP Kids’ Chance Board of Directors William D. Cabot, M.D. Robert M. Clyatt, founder & chairman of the board Stephen A. Dawkins, M.D. Dick Dorsey, Esq. Lendon D. Gibbs, Esq. Pauline F. Hale Judge Carolyn Hall Jeffrey Kight, Esq. Judge Patricia M. Killingsworth Doug McCoy Judge M. Yvette Miller Lonnie Plott Susan J. Sadow, Esq. SUMMA CUM LAUDE DONORS: Michael R. Eddings, P.C. Miles Gammage, Esq., in memory of Lamar Gammage George & Wallach, LLP, in memory of William V. George and in honor of Lavinia B. George Gary Martin Hays & Associates, P.C. Long & Holder, LLP Moore, Clarke, DuVall & Rodgers, P.C. Swift, Currie, McGhee & Hiers, LLP CUM LAUDE DONORS: Bexley & Osofsky Bishop & Tifverman, LLP Robert D. Ingram, Esq. & William R. Johnson, Esq. Moore Ingram Johnson & Steele Silver & Archibald, LLP Wall & Elliott, LLP VALEDICTORIANS: Blackford & Blackford, P.C. J. Franklin Burns, P.C. Cruz & Associates, P.C. Divine & Dorough, P.C. Phillip M. Eddings, P.C. Farrar & Hennesy

Denise F. Hemmann, P.C., in honor of my father, Alfred D. Fears Sr.; E. Earl Mallard, former chair of the Georgia State Board of Workers’ Compensation; and the Board’s executive director under Mr. Mallard’s tenure, John Andy Smith Jr. Kissiah & Lay McLain & Merritt, P.C. Speed & Seta, LLC HONOR GRADUATES: Victor Alexander Jr., P.C. Charles R. Beans L. Lee Bennett Jr., P.C. Bennie H. Black, Attorney at Law Boston Passante, LLP Brosnahan & Spillers, LLC The Carter Law Office Castan & Lecca, P.C. Thomas C. Chambers III, Attorney, in memory of Lamar Gammage Laurence L. Christensen, P.C. Clements & Sweet, P.C. Robert M. Clyatt, Attorney at Law, in memory of my late father, Dr. Bobby M. Clyatt; in honor of my beloved mother, Mary Alice Clyatt Thomas, and my wonderful children, Christy, Cari, Griffin, and Madelyn Elizabeth D. Costner, Attorney at Law Jason A. Craig & Associates, P.C. Bruce Edwards, Attorney at Law John W. Folsom, Attorney at Law, in memory of Randy L. Blackwood Gardner, Willis, Sweat & Goldsmith, in memory of Blaine Cooper Ginsberg Law Offices, P.C. Foy S. Horne Jr., Attorney at Law, in memory of Ed Miller Melinda M. Katz, Attorney at Law Gary M. Kazin, Attorney at Law McNatt & Greene David H. Moskowitz, Attorney at Law Kenneth A. Parker, Attorney at Law Marvin L. Price, Attorney at Law Marci R. Rosenberg, P.C. John H. Ross, in memory of Lamar Gammage Howard D. Simmons, P.C., in honor of Elisa & Ryan Simmons Stow Garvin & Glenn Judy H. Varnell, P.C. Young Thagard Hoffman Smith & Lawrence Zirkle & Hoffman, in memory of Lamar Gammage

INTRODUCTION

T

he Executive Committee of the Workers’ Compensation Section of the State Bar of Georgia had the courage to do what has never been done, to chronicle the history of the workers’ compensation system in Georgia. This ambitious project has been

five years in the making, and its goal is to preserve the legacy of the past for future workers’ compensation practitioners.

In 1988, Bob Clyatt, chair of the Workers’ Compensation Section at the time, told section members at a breakfast meeting about a dream he called “Kids’ Chance,” an educational scholarship fund for the children of workers who have been seriously, catastrophically, or fatally injured in a work-related accident. Chapter 6 of this book is devoted entirely to Kids’ Chance, and the profit from the sale of this book will fund future scholarships. The financial contributions made by the section and by the many sponsors listed in this book paid for this substantial undertaking.

The practice of workers’ compensation law is influenced by the social and economic purposes of our workers’ compensation system. We operate in a judicial environment that is premised upon the dual concepts of “no fault” and the “exclusive remedy.” These precepts are a radical departure from the “common law” that is the foundation of our civil judicial system.

The workers’ compensation legal community is unique because we see each other in so many cases. Relationships develop between adversaries that inure to the benefit of our clients.

This aspect of our law practice did not occur by happenstance. The pioneers profiled in this book defined a system that was born out of humanitarian and economic necessity. They tested the limits of an entirely new area of law and set an example for all of us. Recording their achievements can help us appreciate the responsibility we have as caretakers of the system.

Kids’ Chance is our ultimate blessing. The stories of our Kids’ Chance scholars are heartwarming and remind us of the devastating impact a work-related injury has upon a family. The

achievements of our Kids’ Chance scholars are a testament to the injured worker and serve as shining examples of the humanitarian aspect of our workers’ compensation system. Kids’ Chance has enabled us to rise above our ideological differences for a cause we all enthusiastically embrace.

If we succeed in our mission, this book will enrich the heritage of our unique and remarkably practical socio-legal system. The history and anecdotes portray a “Just and Noble Cause.”

I dedicate this foreword to my mentor, John Williams, who inspires me professionally and humbles me personally.

Mark Gannon Savell & Williams June 2005 9

Administrative law judges hear hundreds of cases each year in the courtrooms located within the halls of the State Board of Workers’ Compensation.

Looking into the Twenty-First Century

LOOKING INTO the twenty-first century

I

n the spring of 2001, a case came before the State Board of Workers’

Compensation that would test much more than just the legal expertise of

all those dealing with workers’ compensation law in the state. It would test

the ingenuity of the courts, the willingness of attorneys on opposing sides to work together, and the usefulness of technology in a world more comfortable dealing with aching backs and injured hands.

The case involved a man who had suffered a systemic breakdown after a chemical exposure that led, among other problems, to cardiac and respiratory failures. He was forced to live in a “clean” environment and only on the coast— and to remain near his doctor, a specialist in chemical sensitivities. Although he claimed catastrophic injury, he couldn’t travel to Atlanta to plead his case or sit in any public place for a hearing without facing serious health ramifications.

Administrative Law Judge Carl W. McCalla III, who had been on the bench just over a year, realized there was no legal precedence for what he was about to do—and for what he would be asking both the defense and claimant’s attorneys to do. As a compromise, he took the hearing out of the regular courtroom on the seventh floor of the Southern Company Center in downtown Atlanta, relocating it to a facility that could accommodate videoconferencing. The injured worker was permitted to remain in a hospital facility near his home and with his treating physician. Judge McCalla conducted the hearing with a live feed of the employee from that remote site, with very little delay in the relay. The worker’s physician and rehabilitation supplier also testified from there.

There were issues that every judge must deal with, magnified here by the circumstances: impeachment and authentification of evidence, and a client’s right to confer privately with his attorneys. Scanning, email, and fax capabilities cut down on some of the paper challenges—though when documents were referenced without forewarning or were needed for impeachment and then tendered into evidence, McCalla found himself caught off-guard.

“I think,” McCalla said months later, “that this is the wave of the future . . . an extremely economical way to try a case involving out-of-state parties and witnesses. I’d call it a success.”

11

Foreword

A Just & Noble Cause

Of the forty-three thousand cases brought that year before the branch of the courts that handle workers’ compensation, the case stood out for both the difficulty of hearing it—and because of the sensitivity that went into deciding it.

In the nearly one hundred years since the world began to acknowledge that both workers and employers needed protection in cases involving on-the-job injuries, the law—and those practicing and overseeing it—has gone from the simple to the complicated, from the obvious to the inconceivable. Today, lawyers on both sides of the cases must be conversant in medical and psychological idioms. Judges are called upon to evaluate testimony that may be filtered through interpreters dealing with speakers of Russian, Spanish, and Japanese. Clients may be victims of injuries unheard of in years past by pieces of equipment that may be common to only a single industry. Employers are regulated—some argue overregulated—by federal and state laws that can impact the bottom line in a most definitive fashion.

The law that started out as “the great trade-off” because both sides had to give up something is at once a fluid, complicated animal, and a body of work

12

Looking into the Twenty-First Century

complicated and ever changing—what Atlanta attorney Mark S. Gannon calls “a no-fault system created out of whole cloth.”

In Georgia, that translates into twelve hundred lawyers and twenty-five administrative law judges plowing fields that may have never been plowed. It involves some of the most hands-on cases in the world—cases of people hurt, lives turned upside down, businesses faced with growing costs of doing the jobs that need to be done in the best possible fashion.

“Sometimes,” says Emily George, a lawyer in Forest Park who handles only claimants, “you feel a little like a social worker.”

How and why the practice of workers’ compensation has grown in just over eighty years from a tiny part of the legal system to one that annually dispenses more money than all the other courts combined is the story of a just and noble legacy, the history of workers’ compensation law in the world, the nation, and in Georgia.

And it begins just as the world was slipping into the modern era we call the twentieth century.

13

Amid the Ashes

Chapter One

AMID the ashes

J

ust before closing time on a springlike March Saturday afternoon, a fire broke out on the top three floors of the ten-story Asch Building in the Triangle Shirtwaist Company in lower Manhattan. Within minutes the

workers—mostly Jewish, German, and Italian women immigrants, many of them teenagers—realized they were trapped by locked doors, broken freight elevators, and a single interior fire escape that had become an inferno. Panicked, the workers battled toward doors that opened inward rather than outward, sealing them shut with their bodies. Some, desperate for escape from the fire racing through the cotton fabrics, began leaping out of the upper-story windows, tossing out a purse, a hat, then themselves.

The first deaths occurred within minutes, before Engine Company 72 could arrive from six blocks away. A policeman and a fireman grabbed a horse blanket and tried to catch the next hurling body; the blanket split, and the body hit the pavement.

It was over within thirty minutes: 146 of the 500 employees had died. The fire was so hot and so fast inside that some of the women were found still at their sewing machines. Ironically, the exterior of the building was fireproof and showed no signs of the devastation within.

The nation reacted with shock and horror. Within days after the March 25, 1911, fire, they raised thirty thousand dollars for the relatives of the victims— and they demanded to know how such a tragedy could have occurred.

The governor of New York launched an investigation into the working conditions of that warehouse and others around the city—the places that had once produced the uniforms for Civil War soldiers but were now sweatshops paying little but demanding high production of civilian wear. The subsequent report lamented, “The human factor is practically neglected in our industrial system. . . . [There is] a terrible waste of human resources, of human health and life.”

➤

Headlines in the March 26, 1911, New York Times tell of the tragedy that ultimately ignited a demand for reform.

15

A Just & Noble Cause

Nine months after the fire, the owners of the building were acquitted of negligence for having locked the exit doors on the ninth floor of the building where most of the deaths had occurred, a decision they said was to protect them from theft. They were sued by twenty-three of the victims’ families and three years later paid each of them a sum of seventy-five dollars. That, and the thirty thousand dollars raised by the anguished public, was the only compensation any of the victims’ families would receive, a fact that Dr. Charles P. Neill, the U.S. commissioner of labor, a few months later described in this way: This is the only country in the world where an appeal for help has to be made following an industrial disaster. All countries where there is industrial advancement such as we enjoy have the necessary machinery to provide for the victims without an appeal to charity. The fund of $30,000 raised for the relatives of the recent tragedy, while it does credit to the charitable inclination of the citizens of New York, is an indictment of the maladjustment of our social system.

The Triangle Shirtwaist Fire added urgency to the vast overhaul of workplace safety and workers’ compensation laws throughout the country that social reformers had begun pushing at the turn of the century. Although there had been fledgling efforts to provide employee protections for more than fifty years, including several laws ruled unconstitutional, little tangible progress was made until 1911.

Within two months after the fire, Wisconsin became the first state in the union to adopt a true “workmen’s compensation” law, an act lawmakers there had been studying for two years. Eight more states enacted a law that year. In 1915, both Alaska and Hawaii passed workers’ compensation laws, even though they were only territories. The reforms picked up steam each year: ten in 1913, eight in 1915, five in 1917. In 1918, it reached the South when Virginia enacted its own law.

And in 1920, it arrived in Georgia.

An Ancient Right Simply defined, workers’ compensation is the oldest form of social insurance, a way to make provisions for workers who are injured in accidents arising “out of and in the course of employment.” It is based on the concept that economic losses due to industrial accidents should be regarded in the same way as losses resulting from depreciation or breakage of machinery and considered as a part of the cost of production.

Mentions of this concept are found in materials from the tenth century BC and in the book of Genesis. In the early eighteenth century, a respondeat superior doctrine under Old English common law came into being, in which the “master” was held liable for damages to a third person caused by a servant’s 16

Amid the Ashes

act or omission. Not many workers were protected under this “fellow servant” doctrine unless they were injured by a fellow worker, but it was a step in the right direction.

The coming of the Industrial Revolution between 1700 and 1850 intensified the number and frequency of accidents and amplified the burden of injuries on society as a whole. Coal mining accidents could take out hundreds in a single moment; railroad accidents dozens; textile industries might injure only one worker at a time, but the relentless pressure and unsafe machines meant a steady stream of men and women put out of work—and, usually, out on the streets.

Europe, heavily industrialized long before America, took a stronger role in compensating employees during the later years of the industrialization. In 1838, Germany passed legislation protecting railroad employees and passengers in the event of accidents. Leaders modified the law in 1854 when they developed a cost-sharing arrangement between employees and employers to support injured and disabled workers through a sickness fund. A voluntary insurance act went into play in 1876, failed, and was revived in 1884 as a compulsory plan. That plan became the model of our present system.

The English were a few years behind. In 1880, Parliament passed the Employer’s Liability Act to aid what the English called the “workingmen.”

Under English common law, the injured worker had only one course of action, to sue the employer. It was virtually the same system that had existed in Germany for many years; while filing complaints usually exacerbated the worker’s economic problems—they had to bear all the legal expenses at the very time when money became the tightest—more cases were crowding the dockets and backlogging the courts. The legal profession added to the chaos and confusion by becoming increasingly interested in representing injured workers on a contingency or a percentage of what they could collect. With more sophisticated representation, the workers increasingly won their cases, forcing the employers to face attachments of machinery, buildings, and property to satisfy the judgments.

In 1897, England repealed the Employer’s Liability Act and replaced it with a “workmen’s” compensation act to try to simplify the cases and make a more equitable system for both workers and employers.

Georgia Steps Up Nineteenth-century America was a nation conducive to industrial growth.

Abundant natural resources, a large labor supply, and skillful entrepreneurs coexisted in an environment with few political barriers. The country had been founded on the ideas of individualism and laissez faire. “Capitalism,” one historian said, “came in the first ships,” and the concept of the self-made man was the bedrock of the American culture. A New England textbook even confidently stated, “Persevering industry will enable one to accomplish almost anything.”

17

A Just & Noble Cause

The drive to create wealth pervaded the political sphere; government was to be used as another instrument to achieve industrial growth. With those strong tenets in mind, American business owners had little moral or legislative incentive to provide protection to workers. As John D. Rockefeller, a teacher of a Baptist Bible class, told his Sunday-school students: The growth of a large business is merely a survival of the fittest. . . . The American Beauty Rose can be produced in the splendor and fragrance which bring cheer to its beholder only by sacrificing the early buds which grow up around it. This is not an evil tendency in business. It is merely the working out of a law of nature and a law of God. Since man was the master of his own fate, and success or failure could be explained solely in terms of character and personal determination, then accidents were little more than bad luck, the sacrificing of Rockefeller’s buds. If employers thought of protection for their employees at all, they thought in terms of the same sort of common law that England had: let them sue and prove negligence.

Georgia, with its population of 906,000, was the first state in the United States to even give the worker that much protection when it passed an employer

➤

John D. Rockefeller’s version of capitalism virtually excluded protection for workers.

liability law in 1855. Although still heavily agrarian, Georgia by 1849 was making the same inroads that the older, more populous northern states had already made. A Knoxville newspaper in 1859 heralded Georgia as the New England of the South, asserting that its railroads, factories, and population were expanding so rapidly it would soon contest the economic supremacy of the North. Textile mills, in particular, showed real prominence on the Georgian employment landscape; in 1840, there were nineteen mills in the state, with 779 employees. A decade later, there were thirty-two mills with $2 million invested and 6,000 hourly wage earners.

That many workers—and that many employers—meant an increasing list of injuries.

18

Amid the Ashes

Georgia’s Employer Liability Act, which applied only to railroad workers, was the first ultimately passed by twenty-six states between 1855 and 1907. It simply gave the employee the right to sue the employer for an injury caused by another employee, or the “fellow servant” defense. None of the laws involved actual compensation, although the State of Maryland came close in 1901, passing an act that provided for a cooperative accident insurance fund, much like the earlier laws in Germany. Benefits were provided only for fatal accidents, and the law was ruled unconstitutional three years later.

The President Sees “an Outrage” But if the world of worker protection was undergoing few changes, the American workers had been self-respecting craftspeople; now they became mere adjuncts to great machines. The number of factory workers multiplied more than

19

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world of the workers themselves was radically different. Before industrialization, Workers in a Georgia textile mill in the 1800s were little more than adjuncts to the machines.

A Just & Noble Cause

➤

The growth of factories brought unskilled laborers off the farms and into the world of machines, such as at this mid-1900s Georgia factory.

ten times in the second half of the nineteenth century—a growth much too swift to allow for needed social adjustments. The new urban workers were drawn from the farms as well as from the nine million immigrants the nation absorbed between 1880 and 1900. An additional twelve million would arrive by 1914, providing an important supply of unskilled labor. From 1860 to 1910, while the rural population doubled, the urban population multiplied about seven times.

The machines were winning—and mutilating. Jobs in large factories equipped with high-speed machinery became monotonous, and hence more dangerous. Most businessmen failed of their own accord to face up to the 20

increased monotony of the work, industrial accidents, and other problems of laissez faire. By refusing to take any positive steps on their own, businesses invited the rise of organized unions, political interference, and the call for reform.

Thus America went into the twentieth century as a land of contradictions.

On the one hand, there was an idealism and humanitarianism which led the wealthy to give generously to private charity. But on the other was a careless disregard of life that put America substantially behind other industrialized nations in the prevention of unnecessary work-related accidents and the care 21

➤

problems brought about by the loss of personal contact with the workers, the

Swift Manufacturing Company in Columbus was one of the largest employers in post–Civil War Georgia.

A Just & Noble Cause

of employees after they had happened. As the editor of a magazine called Everybody’s Magazine posed in November 1907 in a note preceding an article called, “Making Steel and Killing Men”: Have we in America the same attitude toward human beings that we have toward the linings of blast furnaces? Do we think that a man is good for so much iron and steel, and the quicker he makes it the better? Must he then go to the graveyard just as the lining of the blast furnace goes to the junk heap?

The situation was ripe for radical changes as social reformers, labor unions, and government leaders wrestled with the obvious. Massachusetts tried in 1908 with legislation establishing private plans for compensation, a law never signed by the governor. That same year the U.S. Congress, at the urging of President Theodore Roosevelt, passed the Federal Employer’s Liability Act to provide benefits for railroad workers injured on the job. The law was, admittedly, woefully inadequate for the job at hand. Yet it gave President Roosevelt a forum for speaking up. Pointing out that the burden of an accident fell upon the helpless

➤

President Theodore Roosevelt became the first U.S. leader to demand protections for workers.

man, his wife, and his children, the president declared that this was “an outrage.”

“If someone got hurt on the job and they wanted to seek redress from their employer, they had to sue their employer just as if they were not employed there.

The time constraints a lot of times broke people,” said David Higdon, a Macon lawyer who has studied the history of the law and teaches law at Mercer University.

While the focus of concern in the country was employees, employers were also grumbling. Lawyers grew more successful at winning the cases for employees, and employers were troubled by the uncertainties associated with the courts and juries applying negligence liability to accidents. Some large awards by juries fueled these fears. A study of appellate-court accident cases in the first quarters of 1875, 1885, 1895, and 1905 shows tremendous growth in litigation—and plaintiffs were recovering damages in their negligence suits more frequently than ever. The employers were losing, and they didn’t like it. Yet, since the negligence liability system had become an increasing source of friction between workers and employers, employers worried that state legislatures would adopt legislation limiting their defenses in liability suits.

Enter Wisconsin Wisconsin had been at the forefront of workplace reform as early as the midnineteenth century when it enacted protections for women and children. The state’s population in 1900 was just over two million people, representing an increase of 22 percent from 1890. Two-thirds of the people made their livings from agriculture, but in the cities three-fourths of the wealth was produced 22

Amid the Ashes

from manufacturing.

Crusading leaders had made Wisconsin the state most widely recognized for its progressive innovations and reforms, a sentiment leading it toward social engineering on a scale unprecedented in American history. An important part of the state’s philosophy was the workmen’s compensation law and the idea that industrial accidents could no longer be considered the “fault” of anyone, but should be regarded as a normal, though regrettable, part of the production process. The costs of these accidents ideally should be borne by industry itself, which could then pass the costs on to the consumer through the price of the product.

The Wisconsin legislature of 1909 established a committee to study the feasibility of such a plan and sent one member to Europe to examine the workings of the compensation laws there. After two years of study, four drafts were prepared with the advice of employers who had been asked to contribute to the study.

The restriction of common-law defenses—assumption of risk and the “fellowservant” doctrine of old—were recognized as the key to the new law. Workers’ compensation would succeed only if most employers were willing to trade their common-law defenses for certain but limited liability, the amount of which was fixed by law, and if most workers were willing to trade the chance of a big recovery for a smaller but certain payment not based on fault.

The bill passed quickly in both houses by large majorities. Although there were more battles ahead—and would be even after 1948 when Mississippi became the last state to adopt the law—legislators persevered in getting the laws through.

Progressives and social reformers joined the mix, and the various interest groups fought, sometimes bitterly, over the specific details of the legislation, including the generosity of benefit levels and whether the states would sell workers’ compensation insurance to employers. These battles over the details at times slowed the passage of the legislation, and benefit levels tended to be higher in states where there were more workers in unionized industry but lower in states where dangerous industries predominated.

But the laws were being enacted—and were being upheld in the courts.

No one was naïve about the bills, and no one was completely happy. “It’s called the Workers’ Compensation system, but it really ought to be called the Employer Protection System, because basically what it does is ensures that an injury that would be very disruptive . . . doesn’t disrupt business such that it draws it to a halt,” says John F. Sweet of Atlanta, who represents claimants. Yet Robert M. Clyatt, a defense lawyer in Valdosta, looks on it in a different way, arguing that the basis for the law is to “find out the truth and do what’s right.”

In the final analysis, the adoption of workers’ compensation was popular legislation. It was supported by the major interest groups—employers, workers, insurers, and social reformers—each of whom anticipated gains from the legislation.

23

A Just & Noble Cause

➤

Cotton mill employees worked in conditions that were often deadly and seldom pleasant.

Georgia Accepts the Challenge Georgia in 1920, with a population of 2.8 million, was a long way from the destruction of the Civil War, turning again to textile mills for the major source of employment. The region had long since eclipsed New England in terms of yarn and cloth production. Textile mills sprang up throughout the foothills of the Appalachian Mountains and into urban settings like Atlanta and Columbus and in rural upland areas like Dalton. By the end of the first decade of the twentieth century, more southerners worked in textile mills than in most other occupations.

That was the good news. The bad was that the work was hard, dangerous, and poorly paid. Whole families—husbands, wives, and children—labored in the mills to make ends meet, working ten to twelve hours a day, six days a week.

The factories were noisy and dangerous. Lint floated in the air and collected on 24

Amid the Ashes

the hair and skin of the mill workers. After years of working in the mills, many found that the lint had also settled in their lungs. The health problems that resulted could cripple or kill them. Workers who were injured on the job lost pay—the $6.40 to $10 a week for sixty hours of hard work—and sometimes lost their jobs.

Labor unions pushed into the mills in the late 1890s and found particular strength in Atlanta and in Columbus. A yearlong strike in 1914 and 1915 at the Fulton Bag and Cotton Mills in Atlanta caused hard feelings both in the mill and in the town when scabs began to take the workers’ places. The strike ended when the union ran out of money, but the anger among mill workers continued to fester. In February 1919, seventy-five hundred workers in Columbus, 90 percent of the city’s mill hands—walked out. The strike grew ugly and ended when one striker was killed, a twelve-year-old boy was crippled, and four others were wounded when company men drew their pistols and fired into the union crowd.

While this basically signaled the end of the union movement in Georgia, the state’s leaders were wary, recognizing that workplace reform had to take place now.

Partly at the insistence of Gov. Hugh Manson Dorsey, and most surely falling in line with the Democratic federal mandates of President Woodrow Wilson, Georgia’s legislature took action during the heat of the summer of The state’s future workers’ compensation law came out of the Committee on Commerce and Labor already a winner, with a “Do Pass” recommendation. On its third reading, Senate Bill 213, a bill to create an Industrial Commission, the

25

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1920.

Tension in mills like Fulton Bag and Cotton in Atlanta helped force Georgia to implement worker laws.

A Just & Noble Cause

forerunner of today’s State Board of Workers’ Compensation, passed the Senate by a vote of 26 to 0. Three weeks later, it had gone to the House of Representatives and been approved by a vote of 120 to 27. Although it has been amended many times, today’s workers’ compensation laws still have some of the same elements of Act 814, which was designed to prevent industrial accidents; to provide medical and surgical care for injured employees; to establish rates of compensation for personal injuries or death sustained by employees in the course of employment; to provide methods of insuring the payment of such compensation; to create an Industrial Commission for the administration of this act; and to prescribe the powers of such commission . . .

The adoption of workers’ compensation led to substantial changes in the nature of workplace accident compensation, what Higdon calls “a leveling of the playing field.” At the same time, they were laws enacted as great trade-offs.

Workers didn’t have to fight the unsavory battle of winning in court against powerful employers. “In many towns, the mill employed 90 percent of the people, and you just weren’t going to get a jury verdict against them,” points out Curtis Farrar, who has practiced law in Douglas for almost thirty-five years. But on the other side of the coin, he says, “Ninety percent of the workers’ compensation injuries are acts of

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Taking a cue from President Woodrow Wilson’s “New Order”—as this political cartoon of the era attests—Georgia Democrats pushed through legislation on behalf of workers.

God. . . . Somebody bends over to pick up a box and his back goes out.

Compensation was no longer based on the worker showing that the employer was at fault, nor could compensation be denied if the workers’ negligence contributed to the injury. [Legislators had to] create a no-fault system where injured workers would at least get some minimal compensation.”

At the same time, the Georgia law, as is true in all the other states, “insulates employers from catastrophic lawsuits from negligence on behalf of the company,” said the late E. Lamar Gammage Jr. of Cedartown, who practiced law since his graduation from the University of Alabama in 1952. More than 127 million workers in the United States were covered by various state workers’ compensation systems that paid out more than $45.9 billion in the year 2000. Georgia’s share that year was forty-three thousand claims and payouts of $456.8 million. In Georgia, about twelve hundred attorneys now practice workers’ compensation law full-time. Of those, between three hundred and four hundred do defense work, and another eight hundred do claimant work. Administrative law judges hold hearings, hear appeals, and conduct mediation sessions in eleven cities around the state.

The law has created a cottage industry of vendors, including investigative, medical, and rehabilitation services, and insurance providers. It has also spawned 26

Amid the Ashes

its own charity, an organization called Kids’ Chance formed by the lawyers to help the children of injured workers.

It is a regular concern of Georgia legislators and the subject of a governor’s commission to determine if the workers’ compensation system is working, and working well. Those who regularly review the law and the changes necessary to it include academics, representatives from the insurance industry, organized labor, the textile industry, employers, and government agencies. “We’ve developed a protocol and S. Gannon, an Atlanta attorney who has practiced workers’ compensation since 1976.

There are also lamentations about the system that was, and hopes for the system that could be, and stories told of battles won and lost by the men and women who lived them—the modern monograph of fact and fabrication, tradition and parable, created through almost a century of the new and still evolving field of workers’ compensation law.

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a system that meets the accountability needs of our clients, on both sides,” says Mark Georgia Governor Hugh M. Dorsey made passage of the 1920 workers’ compensation law a priority in his administration.

The Early Days—Road Warriors and Politics

Chapter Two

THE EARLY DAYS— road warriors and politics

T

he passage of the 1920 Georgia Workmen’s Compensation Law hadn’t been as smooth as the voting numbers suggested. In fact, its passage was heralded by the newspaper the next day as “the miracle of

the session”—an unexpected victory on the night of the last long day of a legislative session that didn’t adjourn until 4:10 a.m. and left political blood, and a lot of money, on the table. the Georgia House was in no mood that August night for Senate bills. As the evening session started, influential House leaders declared they would block the passage of any more Senate measures—and that included most especially the complex workers’ compensation bill. A version of the bill had already died in committee in 1919 when it never made it past the Senate. Reintroduced in 1920, the bill was as widely discussed as any other bit of proposed legislation.

It came to the House of Representatives with a great pedigree: It had moved easily through the Senate and had the endorsement of the Georgia Manufacturers’ Association (a forerunner of today’s Georgia Textile Association), the Georgia Federation of Labor, and the state’s insurance industry. It was enthusiastically supported by the state commissioner of commerce and labor, who had assisted in its preparation.

Then politics intervened.

Since it was one of the very first bills to come before the night session of the House, legislators only wanted to have a few of the first paragraphs of the approximately fifty pages read. The speaker insisted the entire bill must be read, and a mind-numbing forty minutes later, the bill’s staunchest supporters watched in dismay as it began to sink under proposed amendments. One legislator wanted to make the law inapplicable when the injuries resulted

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The Atlanta Constitution reported the unexpected success the night before of the passage of Georgia’s original workers’ compensation bill.

29

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Although the bill had come out of the Senate with a near unanimous vote, A copy of the General Assembly’s legislation passed in 1920 included the basis for all later worker laws in Georgia.

A Just & Noble Cause

True Confessions Lawyers practicing workers’ compensation found it almost irresistible not to share the knowledge they had so skillfully gained in this, one of the least-known areas of law.

Macon attorney David Higdon remembers speaking to the members of the workers’ compensation section of the Georgia Bar in 1977, offering them a speech called “Confessions of a Defense Lawyer.”

from the negligence of the employee. Another wanted to make sure the insurance of single men would go to their estate only after creditors had been paid.

While no one really criticized the bill, they seemed intent on changing it “I was all excited, young, and in high cotton with a chance to speak before Supreme Court justices, judges, and Court of Appeals folks,” remembered Higdon. “I got up and confessed to all our little secrets.”

The lawyers loved it, laughing and chuckling and elbowing each other.

The judges, however, were shaking their heads.

to fit some nebulous mold. Mainly, though, they just wanted it to go away this night, when they still had to deal with whether to impeach the state veterinarian for improper actions and hand over three hundred thousand dollars to maintain the state sanitarium.

Finally, one representative could take it no more. He made an impassioned plea that his colleagues withdraw the amendments and get on with the vote.

Thus ended the debate—and thus began the most defining moment of the Georgia Workmen’s Compensation law, a 120-27 vote that made the state one of the first in the country to pass a comprehensive law to protect workers. Even after the law was passed, though, almost sixty years would pass before most

The speech was a great success, but Higdon didn’t win a case for three years after that. “Though I did get invited to speak at a lot of seminars,” he remembers sorrowfully.

lawyers would pay much attention to it.

Riding the Circuit Since it was, in a most unusual way, a law meant to keep lawyers from practicing the law, even the attorneys didn’t see compensation as an intricate part of the legal system.

30

The Early Days—Road Warriors and Politics

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Young lawyers learned the back roads—and back ways—of workers’ compensation law in Georgia by “riding the circuit” in the early days. By day, the lawyers fought, and at night they got together to complain about the food. It wasn’t uncommon then for the judges to accompany them on the circuit.

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Labor organizations in the 1920s and 1930s promoted safety with colorful and dramatic workplace posters.

“Many lawyers did not consider handling workers’ compensation cases as practicing law,” acknowledges Joe B. Sartain Jr., a Gainesville attorney since 1959. “When I first started out,” says John Sweet, who has practiced in this field for more than thirty years, “workers’ compensation was perceived as entry-level work.”

The field of workers’ compensation would, in time, change. But from 1921, when the law went into effect, until the 1980s, the practice existed in almost a parallel world. There was little case law, no courses in law schools, no lawyers specializing in defending or prosecuting the cases.

Lawyers and judges were literally making it up as they went along, learning from each other and setting the stage for cases that would time and again lead directly to the state Supreme Court.

The law, which was immediately amended a year after it was implemented, created an “Industrial Commission,” a forerunner of today’s State Board of Workers’ Compensation. It was composed of four individuals who oversaw and decided compensation cases. Georgia was divided into sections, and the board assigned deputy commissioners to hear cases all over the state. Those deputies would be renamed administrative law judges (ALJs) in 1975.

31

A Just & Noble Cause

The system made for some interesting situations. This was the time of friendly insurance adjusters, files heavy beneath their arms, chatting with attorneys they might see all over the state. “In those days,” says Douglas attorney Curtis Farrar, “if a worker got hurt, you tried your case in the county where he got hurt. You’d ride the circuit. You’d have a judge, and he’d try a case here in Douglas County, and the defense and plaintiff lawyers a lot of the time would be the same. Then we’d ride over to Hazelhurst, then we’d drive to Waycross.”

In one day, the lawyers, adjusters, and judge would have had cases in Douglas, Jeff Davis, and Ware counties, and be on the road sometimes for two weeks at a time, perhaps living in motels that were little more than concrete block structures with none of the comforts of home. “We’d all just drive around with the judge,” Farrar recalls, eating, drinking, and playing pool.

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The atmosphere for these road warriors was wildly different from other areas A working knowledge of anatomy, demonstrated

by William A. “Al” Wall, comes in handy in workers’ compensation cases.

of law. “It was your job as one of the lawyers (on the circuit) to entertain the judges and pick up their tab every night,” says William A. (Al) Wall of Roswell, who

32

The Early Days—Road Warriors and Politics

started practice in 1950 in a firm that did both claimant and defense work. “You’d take turns picking up the tab.

We’d all be friendly and have drinks that night, then the next morning we’d try to cut each others’ throats.”

Others remember that throat cutting was a little more prevalent than good feelings. One lawyer once related a story about another lawyer, saying if he’d seen the guy coming toward him on the sidewalk, he’d cross the street so he wouldn’t have to say a word to him.

Sometimes, though, things were so informal that two lawyers could talk and wrap up cases in thirty minutes.

Although the cases were no less serious for both the clients and their attorneys, making money practicing this kind of law was difficult, if not impossible. The 1920 law allowed employees to recover only permanent partial disability benefits per a schedule that topped out at twelve dollars a week for a set amount of time, depending on the injury, with a cap of four thousand dollars. Strangely, if the employee died, his heirs got even less weekly funds—ten dollars a week, with a cap of three hundred weeks.

Two years later, the legislature tackled the law again, raising the cap to five thousand dollars for injury and establishing death benefits payable in an amount equivalent to 85 percent of the amount payable for temporary total disability.

Even if a lawyer became intrigued with representing clients in workers’ compensation cases, they could hardly hope to make a living with those numbers. Since they barely recognized workers’ of those who did represent clients in these cases was intimate. “We had a lot of camaraderie because you dealt with the same small group of lawyers on both sides. You knew each other’s families and their children,” recalled E. Lamar Gammage Jr. of Cedartown.

Organization Arrives This, then, was the world that existed as attorneys began to define exactly what the law meant. Early court cases, like Globe Indemnity vs. Langford, 1926, helped clarify the law by probing into its language.

Things changed slowly, decade by decade. The law, meant to keep lawyers out of the fray, began to become more complex, and the structure that supported 33

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compensation as an area in which to practice, no one specialized. The world

Early rulings set case law that would have an impact for decades.

A Just & Noble Cause

From Bad to Worse Charles Lane Drew, who retired from practice in 1995, remembers that motel in Ludowici in south Georgia like it was yesterday: this was a place you really didn’t want to stay.

But here he was, with a judge, checking into the only inn in town for what would be three days of hearings. The judge casually asked the woman behind the desk if there was a place to eat. Right next door, she said, but it’s not very good.

The lawyers found their way to the restaurant an hour or so later— discovering that the woman running the motel was also the cook, waitress, and dishwasher here, too.

Drew ordered eggs, figuring it would be safe; they were green.

He spent the next three days eating Tom’s peanut butter crackers and drinking Coca-Cola, rather than venturing back in.

it became more sophisticated. “It’s a system that’s so mechanical, it could and should work without lawyers,” reminds Sweet, who says that when he started practicing law, in 1975, there was about 8 percent lawyer utilization among compensation cases; today, that number is about 18 percent.

Even that was a vast increase over the years between 1920 and the mid1950s, when a few attorneys began to see the wisdom of becoming more vested in workers’ compensation cases.

In their nightly sessions after court hearings, attorneys would often discuss the merits of joining together in some kind of professional organization.

Attorneys formed the Georgia chapter of the National Association of Claimants Compensation Attorneys (NACCA) on April 23, 1955, with forty-eight members. The claimant’s side of workers’ compensation had no paid lobbyist in these days, although the legislature continued tinkering with the law, making substantial changes four times before the mid-1950s. When the legislature made more noises in 1955, the lawyers became more aggressive in their lobbying.

34

The Early Days—Road Warriors and Politics

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In the 1950s, Georgia lawmakers in session labored over the passage of bills, including the breakthrough legislation involving workers’ compensation.

Ready or Not Sometimes justice can’t wait.

Charles W. Barrow of Savannah recalls getting a call one morning from a colorful administrative law judge who always insisted any good compensation case could be tried in one hour.

“The various members . . . would go over to the legislature and spend our own

Barrow had done defense work for an insurance company with a local office in Savannah. The judge, remembering this, called Barrow to tell him no one had shown up for the insurance company to handle a case in which it was the defendant. He ordered Barrow to go to the insurance office, pick up the file, and be in his courtroom within thirty minutes.

time trying to talk the members of the General Assembly into passing progressive legislation for workers’ compensation,” recalls Wall.

Lee Southwell III, who has worked for the State Board of Workers’ Compensation since graduating from the University of Georgia law school in 1975, describes 1955 as a watershed year, when the claimants’ attorneys realized they could exercise tremendous power. “That year (1955) was a bad day at Black Rock for the insurance industry, when the legislature enacted a number of

Barrow did, glancing at the case as he headed down the hallway to the courtroom. When he asked for a continuance, the judge smiled, assured Barrow he was a “good lawyer,” and told him they’d try the case right then.

changes that liberalized the amount a claimant could be paid for a disability.”

After that success, the lawyers loosened the rules for joining the NACCA chapter and expanded its membership to try to influence political leaders in a more major way. Remembers Wall, “After 1955, we began to pick up more help, more members, and were more aggressive in lobbying the General Assembly.”

Ultimately, the small Georgia chapter turned into the Georgia Association of Plaintiff’s Trial Lawyers, which is now the Georgia Trial Lawyers. In 1975, 35

Mercifully, Barrow can’t recall the outcome.

A Just & Noble Cause

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Al Wall gets a groundbreaking request to join the newly established Workers’ Compensation section of the State Bar Association.

36

The Early Days—Road Warriors and Politics

of the State Board of Workers’ Compensation, persuaded all the members of his board to sign a petition to the State Bar asking that it establish a workers’

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an influential attorney named E. Earl Mallard of Cordele, who was chairman The statehouse in Atlanta has been home to more than one scene of intrigue.

compensation section. At the state bar meeting in Savannah from June 3 to June 6 that year, the attorneys held an organizational meeting.

Though there was plenty of professional and personal rivalry—“There were,” says Wall, “a lot of guys I wouldn’t trust as far as I could throw Stone Mountain”—the practitioners of workers’ compensation went into the late 1970s

Politics—As Usual

armed with more tools, more knowledge, and more case law than had ever existed.

Yet, even that wasn’t enough to gain workers’ compensation widespread attention as a viable practice of law. It would, instead, take blackmail from the federal government and nine dedicated—though not overly friendly—mem-

The governor wanted a new chairman of the Industrial Commission in 1943, but the chairman didn’t want to resign.

bers of the state’s first governor’s commission on Georgia’s workers’ compensation law to make young, aggressive attorneys turn to it as an area of specializa-

What to do?

Politics—as usual: the governor abolished the Industrial Commission, re-forming it as the State Board of Workmen’s Compensation.

Alas, the new board had no office and no staff. But, lo! there was an empty office from the now nonexistent Industrial Commission.

And there was a staff left over from that nonexistent Industrial Commission who knew how an office should run.

Now, all they needed was a new chairman . . . appointed, of course, by the governor.

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A Just & Noble Cause

A Rough Fifty Years tion.

Between 1923 and 1971, the Georgia Workers’ Compensation law contained a constantly increasing limit on the amount of medical expenses that could be paid in an individual claim. Nine times in those years the legislature

1923

Amended the Act to allow an individual who had sustained a specific injury to recover benefits for temporary total disability or temporary partial disability for up to ten weeks. The ten-week period was called the “healing period.”

1931 1937

Created the Department of Industrial Relations to administer Workers’ Compensation laws.

Maximum temporary total disability rate was increased from fifteen dollars to twenty dollars, and the dollar limit on temporary total disability benefits was increased from five thousand dollars to seven thousand dollars, the period of medical coverage increased from thirty days to ten weeks, and the cap on medical expense liability increased from one hundred dollars to five hundred dollars.

1943 1949

The switch from a “regular wage” system of computing disability benefits to an “average weekly wage.”

Significantly increased workers’ compensation benefits.

Also the workers’ compensation board set out to determine where the injured person needed more medical care after the “healing period.”

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The Early Days—Road Warriors and Politics

1955 1963

Made broad-range changes to the manner and amount in which the worker would be compensated.

The injured employee could for the first time recover payment for the seven-day waiting period in which he had previously lost wages after an injury. Made other substantial changes in the amounts paid, and for the first time addressed the question of compensation for

1968

Dramatically increased the allowance for medical

expenses from two thousand dollars to five thousand dollars.

1971

Increased the “healing period” from the

mere ten weeks that had existed since 1923 to up to fifty-two weeks.

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heart “injuries.”

Early posters warned of the dangers of machinery— and asked workers to practice safety.

Jimmy Carter, then governor, and later president, visits a Georgia textile mill. In the early 1970s, Carter formed a new state commission—perhaps under pressure from a U.S. senator from New York—to study working conditions in Georgia.

The Years of Great Change

Chapter Three

THE YEARS OF great change

I

f he’d known what he was getting into, Charles Lane Drew would never have walked into that room in January 1973 and faced the eight men waiting like sharks circling bait.

A few months earlier, it had all looked so much easier.

Drew, who had tried and won his first workers’ compensation case twenty days after he had joined a law firm in 1957, was mildly flattered—and certainly intrigued— when Roscoe Lowery, chairman of the State Board of Workmen’s Compensation, told him he wanted him to chair a new commission being named by Governor Jimmy Carter.

Then he found out about the dark underbelly of the beast, the beast in this case being Jacob Javits, the powerful New York Republican senator who had made workplace safety and health standards his mission.

Javits had become interested in working conditions in the Deep South and wanted to make sure some reforms were instituted. Unless Georgia modernized its workers’ compensation statutes, Javits threatened to do it for them, by placing them under the Longshoremen’s and Harbor Workers’ Compensation Act. Drew believed Javits’s complaints were a put-up job to try to stem the flood of industries leaving the North for the South, and he saw the threat as another example of northern aggression. “Boys,” he told the members of his committee the first time they met, “my great-grandfather of resentment and willingness to fight that he did, but the outcome will be the same. We’ll lose. So we’re going to have to make the best of this for the people of this state.”

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fought the federal government some years ago, and we lost. I feel the same spirit

New York Senator Jacob Javits’s power extended far beyond Washington as he called for workplace safety reforms.

A Just & Noble Cause

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Charles Lane Drew instructed his committee to “make the best of it for the people of the state.”

A Clarifying Moment John Williams once defended an employer against a roofer who claimed a back injury kept him from working. Williams hired a detective to make sure that was the case, but could find nothing on the roofer. On the very last day before the hearing, the detective found the man up on a roof, and Williams issued a subpoena for the roofing boss to appear at the hearing at 9:30 a.m.

The trial started at 9 a.m., and at 9:28, the claimant swore again that he couldn’t work. Williams asked him twice more if he could work, then carefully asked him, “Do you understand the question?”

Growing impatient, the judge broke in, “Mr. Williams, he understands the question and has not been working.” At that very instant, the courtroom door opened, and the man’s new boss walked in. The claimant, eyes bugging, turned to the judge and said, “I didn’t understand the question.

I’ve been working.”

With that, the committee—equally divided between management, labor, and legal professionals, including Douglas attorney Curtis Farrar—set to work . . . or, as Drew explains it, set to fighting in monumental fashion. “They were at each other’s throats, fighting tooth and nail. It was bloody, ugly, downright terrible.”

The three years the committee worked were brutal for its members, “taking years off my life and losing me no telling how many clients,” says Drew, who represented both plaintiffs and defense in his practice. The commission members were adamant about getting what they wanted for their constituencies, and they worked without pay, without even repayment for mileage, devoting hour after hour to their mission.

What had begun as a response to blackmail from the federal government would eventually grow into a comprehensive reshaping of Georgia’s workers’ compensation laws—right down to altering the name of the law in 1978 from “workmen’s” to “workers’,” in a nod to the changing makeup of the workforce.

Between 1973 and 1976, the committee of nine sent change after change to the General Assembly, submitting “engrossed” bills that were, by order of the 42

The Years of Great Change

procedure that is no longer commonly used. “Because workers’ compensation had always been a controversial thing, the bills had to go through” without changes because of the politics involved, Drew says.

Inching toward Victory In 1976, the committee was reconstituted into a governor’s commission of about sixty members, chaired for two years by Joe B. Sartain of Gainesville.

Sartain, whose best offer when he left law school in 1959 was “three hundred dollars a week with a desk down the hall,” had started work with an insurance company, and always represented both defense and claimants. He recognized the committee had the potential to be a runaway train, and he worked hard at keeping a sense of humor about running it.

He figured he’d need every edge he could get, since the committee’s job was to start fresh on the workers’ compensation law and completely rewrite it.

Sartain’s group included members from the legislature, insurance people, claimant attorneys, and industry representatives—a stew of special interests whose first draft had to be tabled and sent back for more work.

Things didn’t turn out much better on the second draft, which was approved for submission to the legislature by a one-vote margin. Sartain cast the tie-breaking vote, saying that, while he didn’t like parts of the draft, he believed on balance that there was more good than bad.

The new state board chairman, E. Earl Mallard, and his deputy director, John Andy Smith Jr., put the proposed draft into a bill and helped get it introduced in the 1977 session of the General Assembly as House Bill 258. Both Mallard and Smith, who was a consummate politician with encyclopedic knowledge of the law and deep connections throughout the legislature and the industry, had strong doubts that it would make it. Sure enough, the bill died in a House committee, stymied by strenuous objections from the business and insurance lobbies to some of its provisions.

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Board chair E. Earl Mallard worked behind the scenes to make improvements to the law.

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governor, to be either passed or failed, but not amended—a highly unusual Joe B. Sartain chaired a committee to rewrite the law, and kept the peace through humor.

A Just & Noble Cause

A Long Line of Leaders Carolyn Hall, the current head of the State Board of Workers’ Compensation, is one of a long line of workers’ compensation leaders who are heralded with keeping their hands steadily on what could be an outof-control system. Among the others: Roscoe Lowery, who formed the first Governor’s Study Committee and would hold an annual fishing trip on the Ocmulgee River right below Jesup that would help lawyers develop a camaraderie that helped overcome courtroom tensions.

Earl Mallard, who heard that Governor George Busbee was closing the state’s rehabilitation facility in Warm Springs, used by President Franklin D. Roosevelt for his paralysis, because of its poor condition. Mallard contacted the Roosevelts in New York, and the outcry was so great that the governor had to back off. Contributions from the Roosevelts and their friends flowed in. Today Warm Springs is second to none in treating injured workers.

Herbert Greenholtz, a Governor Busbee–appointed defense lawyer who is said to have had a great understanding of the law and a deep compassion for injured employees without ever leaning toward the workers in a hearing—the true mark of a great judge.

44

The Years of Great Change

Plans to close the state’s rehab center at Warm Springs were thwarted when E. Earl Mallard alerted the Roosevelts of the pending plans.

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45

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Today, the center includes a state-of-art swimming pool used for rehabilitation.

A Just & Noble Cause

Smith doubled efforts the next year to get it through, convincing the opponents of the bill that some reforms were absolutely necessary. When the bill was passed in 1978, it produced comprehensive alterations to the law, turning the so-called agreement system into a direct payment system, abolishing the healing period (see sidebar), and making other changes that set the stage for a remarkable transformation in how the practice of workers’ compensation was viewed.

Few substantive changes to it were made until 1985, when the General Assembly dramatically increased the medical benefits for various injuries— changes that made workers’ compensation a tremendously more lucrative and desirable area of practice.

A Vastly Different Era Legislative Sleight of Hand

Mark S. Gannon came into the practice of law in 1976 while Drew’s commission was still making piecemeal changes to the law. He joined an Atlanta firm headed by a man who had started practicing the year Gannon was born—

John Andy Smith Jr. was Lee Southwell III’s mentor at the state board, and a character almost bigger than life. His political, social, and legal network was remarkable; he had worked as an assistant to the Court of Appeals and the Georgia Supreme Court from 1967 to 1973, and remained in his old carpool, made up of other law assistants, after he came on the State Board of Compensation in 1973.

offering Gannon, literally, a lifetime of experience.

Gannon’s mentor, John Williams, began working in a law firm in July 1949 during his second year in Emory Law School. In December, Williams took the

He had an uncanny knack for knowing exactly how to maneuver, and how to get the best out of the law and the people with whom he worked. Former ALJ Harold Irvin once laughingly said it could be dangerous to discuss law with Smith, because he had trouble distinguishing the law according to the courts and the law according to John Andy Smith. continued, page 47

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John Williams became one of the experts in workers’ compensation law after a lifetime of practicing it.

46

Mark Gannon learned to enjoy workers’ compensation law as a “social system with a purpose.”

continued from page 46

Southwell, who calls Smith “the late, great John Andy Smith,” recalls the way the provision for a healing period disappeared from the statues, with a little sleight of hand.

The healing period had been a provision of the permanent partial disability statute since the original workers’ comp law was enacted in 1920. After the healing period ended, it was legislatively presumed that entitlement to total or temporary partial disability benefits had ended. The limitation penalized persons whose injuries prevented them from returning to work for more than seventy-five weeks.

bar exam and was admitted to the state bar a month later. By that time, though, he was already up to his eyeballs in workers’ compensation cases, since the man he was working with had a heart attack the same month Williams took the bar exam, and that man did mostly workers’ compensation cases. “I got baptized in a hurry,” says Williams.

Gannon wasn’t immersed in workers’ compensation from day one, but he was certainly quickly taught the basics and, he says, “I learned to enjoy the workers’ compensation cases more than the liability ones, because it’s a social system with a purpose.”

But the law in which Gannon would come to specialize originated in a vastly 47

When the Georgia law was being revised in 1978, Southwell noticed that the proposed amendment did away with the healing period. He pointed it out to Smith, who told him, “I know, but don’t tell anybody.” The bill became law without a hitch.

A Just & Noble Cause

different era than Williams’s. The “poor man’s law” was slowly being transformed into a lucrative field that would demand its own classes at universities; its own group of aggressive, eager young lawyers; and its own well-earned place in the judicial hierarchy. After almost sixty years, the practice of workers’ compensation was going mainstream. “When I first started, there probably weren’t fifteen attorneys in the state who had even read the law,” remembers Williams. “That’s why I became the so-called expert on all the cases. I had people calling from all over the state . . . how to do it . . . how to try a case.”

All that changed in the 1980s and 1990s. Where there were once a handful

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of lawyers practicing workers’ compensation, now there were hundreds. There Lester B. Johnson III has observed remarkable changes in the sophistication of the law and its practice.

was no longer anything informal or casual about it, no more shooting pool with the judges or trying cases you had hardly studied. The changes introduced a new approach in the courtroom, and one of the biggest changes was the level of proof needed to prove one’s case. “In the old days,” says Lester B. Johnson III of Savannah, who began practice in 1978, “you didn’t have to have a whole truckload of evidence. You could come in with a wheelbarrow, and nine out of ten times the judge would put you on.” Now, Johnson points out, “they don’t give your client the benefit of the doubt, and if you don’t have your act together, if you don’t come in there with solid evidence, three or four eyewitnesses, chances are you’re not going to get your client on.”

The very fact that a lawyer who didn’t begin practice until 1978 is discussing the “old days” tells how far and how fast the practice of workers’ compensation has changed in the last two and a half decades.

The changes reflect an increasingly sophisticated trial system administered by a state board progressing in knowledge and size. “The bench has improved incredibly,” says Atlanta attorney John Sweet. He points out that the makeup of the twenty-three administrative law judges (ALJs) now represent “people of all races, a diverse court where there’s a much closer reflection of the people we serve. We also have a very bright judiciary. These men and women don’t get paid enough. They are truly public servants.”

At its head is Carolyn C. Hall, one of the most qualified chairpersons to be appointed to the position.

She was literally born into the law; her father, Robert, 48

Judge Carolyn Hall, chair of the state Workers’ Compensation Board, sees technology as the next wave in expediting workers’ compensation cases.

A Just & Noble Cause

served on both the Georgia Supreme Court and on the U.S. Federal Court. She attended law school at Emory— where her father taught while she was growing up.

She spent three years clerking for Judge Osgood O. Williams of the Atlanta Judicial Circuit Court and another seven as a law assistant to Georgia Supreme Court Justice Harold G. Clarke. She became an ALJ in 1994 and ascended to the chair in 1999.

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The workers’ comp courtrooms are often filled with scenes of wrenching sadness.

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The Years of Great Change

Trials—and Mediation Approximately 13,900 cases were referred to the Trial Division in 2003, and 900 went to the appellate court. Hearings are held in the county where the injury occurs, a contiguous county, or a county within fifty miles of the injury.

There are ten field offices located throughout the state, and judges travel to additional locations provided by the counties to hear contested claims.

Cases are scheduled to be heard between thirty and ninety days of the date the hearing notice is mailed, and postponements are granted only on legal

51

A Just & Noble Cause

grounds. The ALJs rule quickly; in the year 2000, the average time for an ALJ to issue an award was less than fifty-six days following the hearing. A threepanel board hears appeals.

Many of the cases, however, never make it to court. A strong mediation system weeds out almost 80 percent of the cases, thus cutting costs, time, and energy. The Alternative Dispute Resolution (ADR) Division handles requests for legal action without the necessity for an evidentiary hearing and includes six mediators headquartered in Atlanta and one in the Columbus office.

ADR mediations resolve everything from simple to complex cases, but though the cases are handled without an evidentiary hearing, there is nothing minor about them; last winter, two lawyers finally resolved through mediation a case that was fourteen years old.

“Georgia was in the forefront of mediation and ADR,” says Judge Hall, who was the founder of the ADR program. “Other states have come to us for the model.”

The Root of the Trouble

She spent two years developing and supervising the ADR unit—and was met with a complete cold shoulder when it went into effect in 1996. Georgia’s

The client was a truck driver who got into an accident that wasn’t his fault but that left a woman killed. He stood in the rain waiting for the ambulance, and as a result, became asthmatic.

The lawyer, Lester Johnson, was pretty sure he’d never get the man on workers’ comp, but the client seemed very convinced. He said he was a root doctor and had just obtained a doctorate in voodoo, and he had this root he had created . . . and, well, the case ended in 2002, with Johnson and the client victorious.

lawyers were less than enthusiastic about the idea of mediation; they were, in fact, “universally negative,” said one attorney. “I was downright scoffing at the idea. We’re all litigators, gearing up for a fight, not thinking about mediating,” recalls Gannon, who handles defense clients.

Because of the nature of workers’ compensation, the state board was able to make mediation mandatory; the attorneys, confronted with the inevitable, began to work with the new system and to evolve into a new way of thinking. Today, they uniformly applaud ADR. The cases that do go into the courtroom offer a fascinating glimpse into the modern working world. Judge Hall notes, “This is one area of the law where each case is unique, involving a lot of legal issues that take a great deal of thought, because there is no binding law to follow.” The practice of workers’ compensation, says Judge Hall, is “a legal challenge.”

The courtroom appearances have all the earmarks of high drama: emotional employees, tough lawyers, easy use of complicated clinical and medical terms, interpreters to ease the language barriers. Tears are common, as the tales become

“To this day, he believes that he was able to get on comp because of the root he had created. And I believe it, too,” says a bemused Johnson, “because there was no way I thought he’d get on comp.”

complicated with stories of disappointed expectations, loss of esteem, financial desperation. (As an outgrowth of this drama, the philanthropic organization Kids’ Chance was organized by members of the Workers’ Compensation Section of the Georgia Bar. See chapter 5.)

Employees and employers both defend their sides of the story, sometimes fiercely. Since there are no juries, all sides speak directly to the judge, and it is up to the individual judges or the three-judge Appellate Division to sort it all out, to understand how a mirror being moved from one place in a manufactur52

The Years of Great Change

ing plant to another can become a dangerous weapon when it slips and strikes a tender part of a body, to decide if the

State Board of Workers’ Compensation Chairpersons

victim is really injured or just enjoying the extended time off, with pay, that came with the injury.

No Smooth Transition The transition from “poor man’s law” to today’s sophisticated interpretation of the statutes was not smooth, and it continues still during each legislative session.

The introduction of a controversial rehabilitation clause in 1978 brought out what Sartain calls “a bunch of buzzards flying into the state.” Though it

TERM:

CHAIRPERSON:

APPOINTED BY GOVERNOR:

1943–1945 1945–1948 1948–1953 1953–1955 1955–1959 1959–1960 1960–1973 1973–1981 1981–1986 1986–1992 1993–1999 1999–

Stonewall H. Dyer Pat J. Riordan Arlie D. Tucker Lawton W. Griffin Richard W. Best William T. Dean Roscoe Lowery E. Earl Mallard Herbert T. Greenholtz Jr. James W. Oxendine Jr. Harrill W. Dawkins Carolyn C. Hall

Herman E. Talmadge Herman E. Talmadge Marvin Griffin S. Ernest Vandiver S. Ernest Vandiver Jimmy Carter George Busbee Joe Frank Harris Zell Miller Roy Barnes

took a number of years to sort out, the law today is considered an effective tool.

“It just took it a long time to get it to a level playing field,” says Sartain.

While there is little bipartisan agreement on whether changes are productive or detrimental, all sides do agree that the swelling paper trail entailed in the more complex court procedures has left little untouched, not even depositions.

“Nowadays, we have a deposition checklist,” says David Higdon of Macon. “A young lawyer will come down here with a list of about 90 to 125 questions typed up. It’s a cheat sheet. It’s easy to ask questions. The hard thing is to listen and follow up.”

Compensation cases—and even the structure of the law firms that try the cases—have become increasingly complicated. Where once you “tried a case just like a jury trial, and you went up there and the judge heard it all,” says Curtis Farrar, “now it’s all done with forms, depositions, and medical reports.”

Technological changes have had almost as much effect on the practice as legal changes. Technology has facilitated more efficiency, but also made for a more impersonal era. “In the 1970s, there were no voice mail or paralegals, so when you called a lawyer to set up a deposition, you’d talk to the lawyer. A lot of times on the first call, you’d resolve the case without a deposition. Now I’m talking to paralegals who can’t commit to anything, agree to anything, or stipulate anything,” Farrar complains.

On the other side, however, technology has given attorneys new capabilities and efficiencies. Judge Hall believes her legacy to the board will be turning the system from a paper-based one to a technological one, a move she acknowledges will revolutionize how business will be done.

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Those who work with machines, and those who hire the employees, learn to take care.

Defining Moments of the Law—and Beyond

DEFINING MOMENTS of the law—and beyond

Chapter Four

H

earts. Lungs. Backs. Fingers. Toes. Hands. Teeth. Through the years, every single organ, digit, limb, and part of the body has gen-

erated cases and created case law. Lawyers have argued that part-

time workers still deserve compensation; that girlfriends, not work, cause heart attacks; that employers who try to prejudice employee care by influencing doctors are in violation of the law. Lawyers have helped companies develop a better and more humanitarian approach to workers and injuries, forced malingering workers back on the job, and helped provide training for workers whose lives declare whether independent contractors are covered under workers’ compensation, defined how big a company had to be before workers were eligible for compensation, and argued that statutes of limitations were sometimes nothing more than an insurer’s willingness to take advantage of workers’ ignorance.

They have litigated or mediated tens of thousands of cases, taken thousands to the Georgia Court of Appeals, hundreds to the Georgia Supreme Court, and dozens to the U.S. Supreme Court. They have slipped things into laws and out of laws, and have changed laws whole cloth in order to better protect their clients—employees and employers alike.

They have been social workers, gurus to voodoo doctors, and targets for metal file cabinets tossed by another angry attorney. They have found themselves amused, vexed, and touched by clients and cases.

Almost on a daily basis, they find themselves immersed in deep issues with lifetime consequences.

“Workers who fall off buildings don’t always die now.

When they live, they’re catastrophically injured, and their cases become enormously complex, legally, medically, and financially,” says John Sweet.

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were irrevocably changed by injury. Attorneys have forced the courts to A safety poster warns workers of the obvious.

A Just & Noble Cause

William “Bill” George founded a family firm that has practiced workers’ compensation law since 1949.

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Defining Moments of the Law—and Beyond

Ask any attorney who practices workers’ compensation to name defining moments, and you get answers both individual to them and universal to Georgia. While some cite memorable cases and dramatic appearances before the Georgia Court of Appeals or Supreme Court, others talk of the cases when they themselves grew in understanding of the law or appreciation of the needs and efforts of clients, judges, and other attorneys. Many times cases have a consistent thread, an issue that will never go away, such as the change in condition versus new injury issues. Yet, while the thread is there, the cases are never mundane.

“I loved it when I did it,” says Charles Drew, who took 120 cases to the court of appeals before his retirement in 1995.

More Than Lawyers For some, like the George family of Forest Park, workers’ compensation is a vital part of their lives, and their commitments to making lives better for others. William and Lavinia, and now their daughter H. Emily, all practice workers’ compensation.

William “Bill” George led the charge, serving on the National Labor Relations Board after World War II, then becoming a claimant attorney in 1949, practicing until 1993. His wife Lavinia joined him at the bar in 1962. Daughter Emily began to practice in 1979. Together, they have 109 combined years of practice, all in the fields of workers’ compensation and Social Security disability.

There is a high level of care and concern in their practice, the belief that their job entails as much social work as law. “Most of [our clients] function on the edge of society as it is. They have a lot of needs— health-care needs for children, for food, for shelter. . . . When the family caretaker is injured, it emasculates him, changes the social structure of the family unit. It can be very devastating for

➤ Emily George (top) and her mother Lavinia (bottom) have built a practice “on heart, not money.”

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Defining Moments of the Law—and Beyond

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Boaz v. K-Mart went all the way to the Georgia Supreme Court, pushed by Georgia lawyer Bill George.

people,” Emily George says. “Our law practice is built on heart, not on money.”

Bill George carried his concerns for clients to the Georgia Supreme Court in memorable cases that helped stretch the boundaries of the law on the claimants side, including Boaz v. K-Mart Corporation, 254 Ga. 707 (1985), which helped determine an employer’s obligation to pay for medical care. Today, his daughter and wife continue their practice of representing injured workers.

Riding a White Horse For John Strain, who practices in Rome, the best moments of his practice of workers’ comp came in the days and weeks exploring a disease he had never heard popularly known as “brown lung,” a product of inhaling unprocessed cotton

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of while he was in college: byssinosis, the textile worker’s disease that is more

Curtis Farrar can describe the positive impact of improving employee-employer relationships.

dust.

Strain remembers like it was yesterday the conversations he had with doctors, the stretching of his knowledge, the searches for more complicated medical research on the disease that was only starting to be recognized for what it was: a life-threatening, debilitating illness that left employees with little hope and even

Vindication

less breath.

Although he lived and practiced in a community that was heavily dependent on the textile industry for its livelihood, Strain saw himself as a knight on a white horse, helping “good folks who had worked in the mills for a long time,” for sometimes longer than twenty years. Most of them were already out of work, perhaps for as long as six years, when they came to Strain to ask for help in getting workers’ compensation help.

He defined both his practice and himself by his ability to help these people

E. Lee Southwell III, who has worked at the State Board of Compensation since 1975, applauds the late John Andy Smith for the law according to Smith which became the law according to the courts eighteen years after Smith’s death.

get money he felt they were owed—what Mark Gannon of Atlanta calls those moments when “the social system with a purpose” works the best.

As with any social system trying to formulate itself, there have been misguided steps and strange compromises along the way. Curtis Farrar of Douglas describes the days when the chicken industry in his community supplied him with a client a month diagnosed with carpal tunnel syndrome or suffering from injuries from slipping on the slick, nasty floors of the factory. The personnel manager was uncompromising, blaming the injuries on the workers, screaming at them to get back to work. Eventually, the corporate offices, alarmed by the number of workers’ comp claims, replaced the manager.

“They started having softball games and all kind of activities, and I didn’t get a claim for three years,” laughs Farrar. “They had the same water on the floor, 59

The case involved a worker who fell for no apparent reason while walking, and Smith convinced the board the fall arose out of employment.

The Superior Court reversed the decision, and there was no further appeal. Smith was vindicated in a case in 2002 when the Court of Appeals ruled in another, similar case that accidents and injuries can be covered under workers’ compensation if the employee’s job put her in a “range of danger” where the injury was possible.

A Just & Noble Cause

For John Sweet, finding the value of a human being is “artful, like Martha Graham dancing.�

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E. Lamar Gammage could see humor in even the most inventive defenses.

the same hand motions causing the problems. They took business away from me because they started treating their employees right.”

It was a white horse of a different kind, the kind from companies and industries that are applauded by lawyers on both sides of workers’ compensation cases. “There are some companies,” reminds Strain, “that have such a sense of community.” It is a company with those attitudes that makes it easy for the defense side of the table to feel equally good about

Girlfriends Reduce Stress

their work. “We rarely get claimants from Gulfstream and Union Camp in Savannah,” says Lester Johnson, “because those companies decided a long time ago that when a person gets injured, they’re going to treat that person like a king.”

Defining Humanity—and What It’s Worth The years have required an adjustment of priorities in many ways for attorneys.

Lawyers who began the practice of workers’ comp before the mid-1980s often worry about the stress that technology has put on the system. Many lawyers, in all fields, dislike the U.S. Supreme Court ruling allowing them to advertise, worrying that it allows attorneys with little or no experience in areas to lay claim to clients by the simple placement of ads. Many complain that the very success of workers’ comp as a lucrative field of practice has depersonalized the service given to clients and the system that supports it.

Massive paperwork, voice mail and paralegals, a changing medical community that alternatively weakens and strengthens care, all raise specters of alarm for the attorneys who are most familiar with workers’ comp.

Even progress in medical care has complicated the cases. Injuries that once would have killed people now sometimes leave them alive but irreparably damaged.

How to determine the value of a human being is “sort of artful, like Martha Graham dancing,” says John Sweet. “And all the time, you’re wrestling with the 61

E. Lamar Gammage Jr. had a case where a man died from a heart attack due to job stress. At the hearing the employer introduced evidence that the man not only was not on the job at the time the attack occurred, but that his girlfriend caused the stress.

A fellow employee testified when he was eating and drinking with the man and his girlfriend, the employee seemed to be under no stress at all. The ALJ ruled for the claimant, stating the employee was under less stress with his girlfriend than at any other time. “I sent that to my lawyer friends, saying the judge has approved having a girlfriend,” laughed Gammage, who died shortly after this interview.

A Just & Noble Cause

Throwing His Own Book at Him When is an injury no longer covered under workers’ comp? Not four years later, according to David Higdon. The case involved a man who had worked for an electric membership corporation in middle Georgia when the cherry picker jerked and he fell, fracturing his jaw and knocking out some teeth. Workers’ compensation paid for his new bridge.

Four years later, while eating a pork chop sandwich, he broke his bridge and required a fivethousand-dollar repair. He submitted the bill, but it was denied by the insurance company, who said the statute of limitations had run out. James B. Hiers Jr. of Atlanta defended the insurer, claiming both the statue of limitations question and that the injury wasn’t related to employment. Higdon stipulated to everything, didn’t have a hearing, and still won the case. Hiers appealed to the full appeals board.

As part of his brief, Higdon quoted Hiers’s book, Hiers and Potter Workers’ Comp, because it was the best case law he could find to quote. During the hearing, the judges asked questions, and Higdon again quoted from Hiers’s book.

Holding his book, Hiers stood up in rebuttal and said, “We’ve revised this edition,” and ripped out the pages Higdon had quoted.

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Defining Moments of the Law—and Beyond

big question of how our society is going to define being human. Are we going to spend fifty thousand dollars for a prosthetic arm so a man can lift a cup of coffee? Basically, you’re up against the face of the definition of humanity.”

Sweet Victory

“In 1960 when we’d get young men in the office,” says John Williams— considered one of the most knowledgeable attorneys ever to have practiced workers’ compensation—“I’d tell them to stay away from comp. I thought they would federalize it . . . and we wouldn’t have any comp law.”

In less than half a century, that idea has completely disappeared, forcing the entire industry surrounding workers’ compensation into its own “defining moment.”

“We’re always going to have workers, and we’re always going to have injuries,” says Charles Barrow of Savannah.

Now it’s a matter of how the law will treat them, and how attorneys will define them.

Attorneys who have spent years practicing workers’ comp often view the work as a solid investment in not only their lives, but the lives of their clients.

For them, the evolution from a little-known area of the law to one practiced by

Lester Johnson won the first time he went to the Georgia Supreme Court, as sweet a victory as any lawyer could ask.

The case involved a client caught between two employers: although he had clearly been injured while working for one of them, there was a joint venture, and the two companies were arguing about which one should pay, giving Johnson the luxury of sitting back and letting the two other lawyers battle each other.

thousands of attorneys across the world is a source of pride—and a commitment to see that the law and its practice continue to grow in stature.

“Comp is fast paced, there’s lots of money involved, and it has big medical issues. Just throw in some gratuitous sex now and then, and it would be something everyone would want to practice,” laughs David Higdon.

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The company that lost appealed all the way to the Georgia Supreme Court, and Johnson—in his first appearance before the court— again argued for his client, asking simply that he be paid. He won.

Kids’ Chance board member and State Board of Workers’ Compensation chair Carolyn Hall (left rear), and referring attorney Celia Sunne (right rear), with the wife and children of Hy Hua Ho, a severely injured worker. Do Mai (center) is a nursing student, and her brother Toan is studying engineering at Georgia State.

Kids’ Chance: Nothing Left Undone

KIDS’ CHANCE— nothing left undone arlton Denson’s father was a welder. Nic Neal’s worked as a sales representative for a large corporation. Tommy Tran’s ran a table saw in a sign shop. Allie Randall’s dad worked for a lumber com-

pany. Chandra Carswell’s dad—her best friend, really—drove a delivery van for a dry cleaning business. John Underwood’s mother and father were both hurt in on-the-job injuries.

Robert M. (Bob) Clyatt didn’t know these names almost fifteen years ago, but he knew other stories just like them, the sad ones of children deprived of fathers and mothers, of lives disrupted by work injuries so severe that nothing would ever be the same, of kids who would never have a chance.

Clyatt hadn’t gotten into the law to be a social worker. He’d fallen into working defense in workers’ compensation cases in Valdosta after he finished law school in 1975 because there weren’t that many people practicing it, and it looked like a good way to make a living.

As he became more adept at his practice, he kept looking at it like that, mainly working defense, protecting his clients from workers who wanted too much or claimed injuries that weren’t really as bad as they pretended. Just practicing law.

A little girl in dirty clothes, a pitiful little thing, changed all that in 1987.

A few weeks before Christmas that year, he was in Albany taking a deposition from a man injured on the job, Clyatt asking the questions he’d need to help determine the validity of the case and his strategy to defend against it. The 65

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C

Chapter Five

It all began with the vision of Valdosta attorney Robert M. (Bob) Clyatt, founder of Kids’ Chance, Inc.

A Just & Noble Cause

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Kids’ Chance scholarships are awarded for one year, provided the student maintains acceptable grades each term. Student success rate is high.

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Kids’ Chance: Nothing Left Undone

deposition had dragged on for more than an hour when the door burst open and the man’s daughter ran to her father, putting her arm around him. Clyatt, who hadn’t known the child was in the lobby, was mesmerized by the scene, the injured

Nicholas Neal

father, the protective little girl, the hopelessness of the whole thing.

“It struck me how this child’s life would be forever changed because her father had this horrific injury. It dawned on me that though she had done nothing wrong, this little girl would suffer the rest of her life. She would have far fewer of the opportunities other children would have because of her dad’s injuries.”

Christmas would be sad and pitiful for her, he thought.

When the man and his daughter left, Clyatt turned to the claimant’s attorney

Nicholas Neal, a Kids’ Chance recipient since 2001, graduated with honors from the University of North Carolina–Asheville in 2005. Armed with an accounting degree, he now works with PricewaterhouseCoopers.

and suggested, “Let’s get that little girl some presents.”

A Stunning Idea Timing is everything. About the same time Clyatt met the little girl and her father, a cousin gave him a set of positive-thinking tapes. Clyatt listened to the tapes as wonderful ideas flooded over him. The motivational speaker assured him that if you have a good idea, people will be attracted to it. If you don’t care who gets the credit, people will step forward. Something begun is only half done, he said.

These maxims and images of the little girl kept swirling through Clyatt’s mind, and he realized the little girl was one of countless children facing a dim future. The kids needed a chance, he thought. That thought distilled into two words: “Kids’ Chance.”

Clyatt brooded about what those chances could mean, and finally decided the number-one thing the children needed was a promise of a good education.

He contacted a claimant’s attorney and a judge who agreed that a charity founded for that cause could work. During the next few months, Clyatt and several other attorneys in the Workers’ Compensation Section of the Bar Association established a nonprofit corporation that would provide educational scholarships for children aged sixteen to twenty-five. The charity’s central concept was simple: recipient children had to have parents who were seriously, catastrophically, or fatally injured in work-related accidents in Georgia, and, as a result, would be unable to continue their education.

Mark Gannon remembers when Clyatt presented the idea for the charity. “It was at the annual meeting breakfast. The outgoing chairman of the [workers’ comp] section of the Bar Association gives his swan song, and Bob Clyatt was the outgoing chairman. That was the forum, the minute, and the moment that he hatched this Kids’ Chance idea. I was just stunned. I 67

At the age of thirty-nine, Stanley Neal was working as a sales representative for a large corporation in January 1987 when he became involved in a tragic automobile accident. While Neal was aiding the driver of a stalled car—the daughter of a doctor he knew— another car hit Mr. Neal’s car.

The car rammed into him, throwing him fifty feet onto the pavement and leaving him a quadriplegic. He requires a feeding tube, and communication is through eye-blinks and occasional whispers. He requires full-time care, provided mostly by his wife Janice, a former high school math teacher who now tutors algebra students in her home.

The Neal family is extremely close knit and upbeat. It’s unfortunate that they did not find out about Kids’ Chance until 2001 when attorney Mark Goodman told Mrs. Neal about the organization.

Nick’s older brother, Matthew, graduated from Piedmont College with a business degree and formidable student-loan debt.

A Just & Noble Cause

thought the idea was brilliant, but quite frankly, a pipe dream. But I decided at that moment I would do whatever I could to make it come into fruition, and everyone else in that room felt the same way.”

Lester Johnson of Savannah was at that meeting, too. “I told Bob I wished I had thought of it because it’s got to be one of the most unselfish causes I’ve ever been involved with. It was overwhelmingly received by everybody.”

In short order, volunteers from insurance, labor, medical, rehabilitation, and other professions joined the fledgling charity.

And then the government intervened.

Tommy Tran Tommy Tran’s father, Hung Tran, suffered a severe on-the-job injury in September 1999 while running a table saw in a sign factory in Lilburn. His condition is complicated by post-traumatic stress syndrome. Tommy’s mother helps support the family through her alterations business, and both Tommy and his younger brother, Khanh, work part-time jobs. Khanh is also a Kids’ Chance scholarship recipient.

Tommy, who lives with his family in Alpharetta, is a student at Georgia State, pursuing a premed degree.

Tommy says one of his goals in life is to become successful so that he can take good care of his parents as they have taken good care of him. “I am so grateful to have the Kids’ Chance scholarship. It wouldn’t be possible for me to have a college education [without it].”

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Kids’ Chance: Nothing Left Undone

Dying on the Vine “Everything was going great until we ran into the Internal Revenue Service,”

Betsy Hughes

says Clyatt. “The IRS is very particular about whom they grant that tax-deductible designation to.”

On August 17, 1994, former Hall County police officer Betty Uriegas was on patrol near Gainesville. When she turned around to survey some gang members, her patrol car was shot at.

Uriegas swerved her car to miss the bullets, hydro-planed on wet grass, and crashed into a tree. Her massive injuries, including a broken neck, left her in a coma for ten days. What followed was a tremendously challenging life as a quadriplegic.

Clyatt’s contact at the IRS was a woman who was adept at turning him away.

Months went by, and the enthusiasm for the project faded. “I remember thinking to myself, Man, this is taking a lot of work. I started getting a little lazy about Kids’ Chance and put it on the back burner,” Clyatt recalls.

Which is where it stayed for months until one eventful April Sunday when he attended church at Valdosta’s Park Avenue United Methodist Church and heard the Rev. J. William DuPree preach on “What I Have Left Undone.”

Through it all, daughter Betsy continued to excel in school, graduating as salutatorian from high school before enrolling in the University of Georgia. In 1998, after receiving her Kids’ Chance scholarship, Betsy wrote: “I am extremely grateful for the financial aid . . . from Kids’ Chance. . . .

Not many people understand truly what we go through daily in order to care for my mom. Kids’ Chance not only understood, but took me in their arms as if I was their child.” In 2002, Betsy graduated Magna Cum Laude with a degree in biology and is now enrolled at the Medical College of Georgia. She plans to become a neurosurgeon.

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Betty Uriegas (in wheelchair) and her daughter Betsy Hughes at the 2001 Tennis Tournament.

A Just & Noble Cause

Chandra Carswell When Chandra was a freshman in high school, she lived with her father, Wendall, who worked as a delivery man for a dry cleaning business in Atlanta. One morning Wendall hugged her as he dropped her off at school on his way to work. She remembers saying “I love you” as she jumped out of the car.

That day Wendall was catastrophically injured in an accident when a car ran a red light and struck his van.

“I felt like I not only lost a parent, but (also) my best friend,” Chandra says. “With the help of my mother, Altemese, as well as family members, friends, and the church, I have learned to deal with life’s many adversities and use them as a source of strength.”

Despite some daunting obstacles, Chandra earned a degree in psychology, helped by a Kids’ Chance scholarship. She graduated in May 2003 from Valdosta State Univer-sity. Wendall Carswell now lives in a permanent-care home in Macon, dependent in all functions. Chandra, whose parents are divorced, is his legal guardian.

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Kids’ Chance: Nothing Left Undone

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At the June 2003 Family Fun Fest in Marietta, Georgia, children and adults alike enjoyed a petting zoo, live entertainment, rock climbing, pony rides, carnival games, and great food. This annual event gives Kids’ Chance supporters an opportunity to relax and play.

Amy McElhaney Amy McElhaney graduated with honors in 2003 from Coffee County High School in Douglas, where she was a member of the National Honor Society, Coffee High Band, and Future Business Leaders of America. She now attends South Georgia College with plans to transfer to Albany State University and earn a degree in business administration.

“The preacher said that if God has told you—and I don’t mean a booming voice coming down from heaven—but in so many ways he’s told you what to do and you know you’re supposed to do it, it’s a sin if you don’t.”

Clyatt felt the sermon was directed to him. “The more [the minister] brought out, the farther I slid down in my seat. I was ashamed I hadn’t done what I was supposed to do.”

The attorney requested a copy of the sermon and read it, then read it again before going to work every day for weeks. His commitment renewed, he checked again with the IRS and was told the charity still didn’t have approval as a tax71

Amy’s father, James McElhaney, received severe cervical and lower back injuries in a rear-end vehicle collision in 1999, while he was employed by a home health care company. He has since undergone multiple surgeries and extensive rehabilitative treatments, but he is unable to return to the workplace.

An active participant in church and community service activities, Amy hopes to eventually become an accountant.

A Just & Noble Cause

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Volunteers make Kids’ Chance scholarships happen— from tennis and golf tournaments to Fun Runs and Family Fun Fests. We couldn’t do without them!

Charlie Bryan Charlie graduated in 2005 from Rabun County High School. His father, Randy, was severely injured in 1989 while on duty as a police officer in Atlanta.

Charlie himself suffers from cerebral palsy and is confined to a wheelchair, but is undaunted by either. “I know that with my physical limitations I’m going to have a hard time living away from my parents, but I want to have a place of my own along with a pretty wife and a couple of kids.”

In the fall of 2005, he will begin a program at Warm Springs Rehabilitation Institute designed to teach him independent living skills. Charlie’s brother, Buck, is also a Kids’ Chance scholar and a junior at Georgia Tech. His sister, Amanda Carson, received a scholarship from Kids’ Chance before she graduated from North Georgia College in 1999; she is now a senior financial analyst with Delta Air Lines.

deductible charity. He scheduled a presentation to Georgia’s Governor Joe Frank Harris. Then he went to visit the IRS.

“It Just Took Off” He was turned down for another appointment with his IRS contact, but he insisted he was coming to see her anyway. Clyatt woke up at 4 a.m. and drove 220 miles to Atlanta. He went up to the tenth floor of the Internal Revenue Service building and was waiting when the doors opened.

Although the agent in charge of Kids’ Chance had already said she wouldn’t see him, she came to the lobby desk, then immediately assured Clyatt they didn’t need to meet. “I just approved it,” she told him.

His father says that Charlie’s Kids’ Chance scholarship gives him a sense of independence while helping to offset expenses for the accommodations necessary for him to

When the IRS bestowed tax-deductible status on Kids’ Chance, money and volunteers started coming in.

“I don’t mean to say it was real easy to get money,” says Clyatt, “but people were attracted to it, good people, and we set up our board of directors to get every group in Georgia in workers’ compensation. Then it just took off.”

During its first two years, the office for Kids’ Chance was a table set outside Clyatt’s office in a hallway. That’s where Phyllis Daniel, the first executive 72

Kids’ Chance: Nothing Left Undone

director, sat. “I’d do my law work, and she’d do Kids’ Chance work, and she would holler in, ‘Okay, what do I do on this?’ That was our little system.”

Things have changed a little bit since then. As of July 2005, Kids’ Chance, Inc. has raised over $3 million and has awarded 433 scholarships, paying for students to attend high school, technical school, and

Hannah Chitwood

college. The organization has spread to twenty-seven states, and the second national convention of Kids’ Chance was held in Savannah in February 2005.

The American Bar Association has endorsed

Hannah Chitwood graduated from Piedmont College in 2005 with a 4.0 grade point average!

She will seek a master’s degree.

the concept of establishing organizations such as Kids’ Chance to accept donations and enact college scholarships for the benefit of the children of workers’ compensation claimants.

One of the things that has made Kids’ Chance so successful has been the support of the Workers’ Compensation Section of the Bar Association.

“We argue about a lot of things,” says Gannon, “but one thing we all agree on is Kids’ Chance.”

The organization started under Judge James

Hannah says, “I love working with children, and I feel that children receive the foundation of their education during elementary school. I want to teach young children who are open to learning and eager to gain knowledge. I hope to be a positive role model who stresses the importance of education.”

Oxendine and has continued with Judge Harrill Dawkins and now Carolyn Hall, all chairpersons of the Georgia Workers’ Compensation Board. It was organized under Governor Joe Frank Harris and was commended by Governor Roy Barnes for outstanding service. It has been featured on the front page of The Wall Street Journal and has been videotaped for a segment of an ABC Peter Jennings Special.

“One of the things we like about Kids’ Chance so much is you can have a conservative Republican sitting there right beside a Democrat so liberal he’s almost a socialist, and they’ll get along so well. Everybody comes together,” says Clyatt.

➤

Carlton Denson graduated in 1999 from Mercer University on a Kids’ Chance scholarship. He now works in the banking industry. His younger brother, David Clark, has also received a Kids’ Chance scholarship.

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Clint Chitwood was catastrophically injured in 1999 on his job with a power supplier headquartered in Habersham County. He was cutting a tree along a rightof-way when the treetop fell, striking him on the right side of his head, penetrating his hard hat and suspension liner. The resulting head injuries have rendered him unable to return to the workplace.

A Just & Noble Cause

Jeff Kight thought his dreams ended with his father’s catastrophic injury in 1990. Because of Kids’ Chance, he is now a practicing attorney and is a member of the Kids’ Chance Board of Directors.

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Kids’ Chance: Nothing Left Undone

Given a Chance There are many poster children for Kids’ Chance—many of them who now

Christie Godwin

serve the organization themselves.

Jeff Kight works today as an associate attorney in Douglas, Georgia, for Cottingham & Porter, P.C. and serves on the board of Kids’ Chance.

If you would have told him when he was ten years old that he’d have this chance, he would have laughed at you. His father had permanently injured his back in the early 1980s while working at Delco Remy, a battery plant in Fitzgerald, Georgia. Eight years later, Kight graduated from Citizens Christian Academy in Douglas, Georgia, as valedictorian. He attended South Georgia Community Junior College for two years, but had no money to go beyond an associate of science degree, although he’d set his heart on attending law school at Mercer University.

In early August 1990, while working a summer job as a lifeguard at the city pool in Douglas, Kight received a phone call from Bob Clyatt.

Christie Godwin is the daughter of Dave Godwin, a former emergency medical technician who sustained massive injuries while treating victims of a multicar crash on I-75 near Adel in 1988. A semi-tractor trailer ran through a roadblock set up north of the crash site and hit Godwin, pinning him against his ambulance. Despite several surgeries, he never recovered and remained in a semicomatose state until his death in 1995.

“The person who answered the phone said some lawyer from Valdosta wanted to talk with me. I had never heard of Bob Clyatt and immediately began wondering what I had done,” remembers Kight.

Clyatt had already talked with Curtis Farrar, a family friend of the Kights in Douglas, who thought Kight might qualify for a Kids’ Chance scholarship.

“Clyatt asked what I was going to do in the fall, and I replied that I wanted to go to Mercer, but that was looking dismal because of a lack of money,” said Kight. “I asked if this scholarship would cover Mercer. He did some checking, called me back at the pool, and said ‘Yes.’ I immediately asked where to sign.”

Kight attended Mercer University in the fall of 1990, receiving a transfer scholarship, financial aid, and a Kids’ Chance scholarship. He graduated from Mercer University with a bachelor’s in business administration in the spring of 1992.

The Kids’ Chance support had not been limited to just financial aid, though.

During the Christmas break of 1991, Kight was home preparing his law school applications, which he says “is a feat in and of itself.”

“I remember very vividly. It was three days before Christmas Day. Several of the applications required short essays. Mr. Clyatt invited me to Valdosta, and though very busy, he reserved me an office and took the time to help me formulate the responses. His secretary helped me too, including typing five different applications. Mr. Clyatt also took the time to prepare a very good letter of recommendation.”

The Walter F. George School of Law at Mercer University accepted Jeff Kight in the fall of 1992. Thanks to Kids’ Chance, Kight was able to go straight through law school and graduate on time. In May 1995, he earned his jurisprudence degree.

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A lawsuit resulted in an award of $3.5 million, but the trucking company declared bankruptcy and the Godwins received only fifty thousand dollars, which Mrs. Godwin used to buy a van and build a house that would accommodate her husband’s condition.

Mrs. Godwin worked at a local bank to support Christie and her younger brother, Josh.

Christie was twenty-one years old when her family learned about Kids’ Chance Inc. She was attempting to attend college but had to work her way through with jobs at local restaurants.

With Kids’ Chance’s help, she earned her B.S. degree in secondary education (social studies) from Valdosta State University in 1996. She then went on to obtain a law degree from Samford University in Birmingham in 2001. She passed the Georgia Bar exam in October 2001 and now practices law with the Decatur firm of McCurdy &

A Just & Noble Cause

➤

Phyllis Daniel (left) served as executive director of Kids’ Chance from 1994 to 2000. Upon her retirement, she turned the position over to Cheryl Oliver (right).

For several years Kight served as an honorary director. At the 2002 board of directors meeting, he was elected to the board, bringing his success story full circle. Today he is a lawyer in the office of Robert Porter—the attorney who, pro bono, drew up the charter for Kids’ Chance.

Clyatt stresses the independent, volunteer way in which this model charity operates.

“Kids’ Chance has no deep-pocket endowments, no government aid, no emergency funds from which we can derive the monies we need. We rely heavily on volunteers to help us carry out our mission. Our work thrives largely because 76

Kids’ Chance: Nothing Left Undone

Melinda and Melanie Williams In early 2003, Melinda Williams saw the Kids’ Chance sign outside the office in downtown Valdosta and stopped to inquire about the scholarship program. Her father, Walter, a self-employed roofing contractor, was catastrophically injured on a construction site in October 2001, when a worker tossed a bundle of shingles from a thirty-foot rooftop. The bundle struck Mr. Williams in the back.

Holder of a third-degree black belt in karate and a self-described workaholic, Williams is now a tetraplegic, but is determined to work again in some capacity.

Melinda graduated with dual degrees and honors in 2004 from Valdosta State College.

She is an exceptional special education elementary school teacher.

the support base and volunteer network we’ve built throughout the state are made up of people from a diverse base and wide range of fields—labor unions, corporations, insurance companies, and legal and medical professionals. These individuals are dedicated to the common cause of improving the present and future lives of Georgia’s seriously injured workers.”

Like a Stone into a Pond Cheryl Oliver, current executive director of Kids’ Chance, calls the recipients of the scholarships “the heart of everything we do. Every phone call, every letter, 77

Melanie graduated from Charlton County High School in 2002 with a 91.2 academic average. She now attends Florida Com-munity College at Jacksonville, where she is pursuing an associate’s degree and then plans to transfer to a four-year college to earn a degree in special education. Melanie works for Data Servers in Jacksonville and lives with her grandmother.

Terrieth Coley Terrieth Coley graduated from Westside High School in Macon.

Although a speech impediment and learning disability present challenges, Terrieth used his Kids’ Chance scholarship to seek tutoring in subjects that gave him difficulty. He plans to attend a vocational-technical college.

every fund-raiser revolves around our determination to meet our commitments to the students we are helping. It may seem that our impact is small compared to larger charitable organizations, but like a stone thrown into a pond, the ripple effect of Kids’ Chance is tremendous. Not only are the lives of ‘our kids’ and their families changed through the help we offer, but our communities and, on a larger scale, our society will benefit from their reaching educational goals and building fulfilling careers.”

Lawyers across the board applaud the results of the charity. “Kids’ Chance removed all barriers, all ideological barriers not only between claimant and

His mother, Bobbie Gibson, was severely injured in June 1992 while working as an auxiliary equipment operator at a power plant. She suffers from disabling knee and back injuries.

defense lawyers but also between employers and their employees. Every facet of the system is united in that cause,” says Gannon.

It is the youth themselves, however, who speak loudest about Kids’ Chance.

Drew Thomas’s father, Danny, was killed in an on-the-job trucking accident in 1984 when Drew was four years old. Drew graduated in December 2003 with a degree in agribusiness. He had

Terrieth recently wrote about his feelings for Kids’ Chance, calling it “more than a financial blessing. It opens doors where they were closed and gives kids like me the chance to be all we can be. Sometimes all you need to keep on moving on is knowing that someone cares.”

kept a HOPE scholarship throughout his four years of college, while Kids’ Chance helped pay for books and other schoolrelated expenses not covered by HOPE funds. Now Drew is putting his education to use in his grandfather’s pine mulch business in his hometown of Glennville. In a recent letter to the Kids’ Chance Board of Directors, he wrote, “I often wonder how different things might have been in my life and the life of the family business if my father had not been killed during the prime of his life.

Thank you from the bottom of my heart for understanding the missing link in my life and the lives of all the other young people that you help. My mother’s prayers were answered when we discovered Kids’ Chance.”

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Kids’ Chance: Nothing Left Undone

Robert Benham, the 2001 Georgia Supreme Court Chief Justice, presented a Kids’ Chance scholarship award to Drew Thomas. Drew earned an agribusiness degree from the University of Georgia in 2003 and now works with a family business in Glennville.

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AFTERWORD

H

istory is not just a collection of facts and figures, words and deeds.

It is a collection of memories, thoughts, and hopes shaped from those more concrete offerings.

For Robert Clyatt, it will also be the memory of a little girl stretching her

arm around her father’s shoulders.

For David Higdon, it will be the use of the arcane word, “beneficent,” in a 1960 court ruling that will make him marvel at both the beauty of the law, and the complications of it.

Lee Southwell III will think of his mentor, John Andy Smith Jr., as the embodiment of the finest in workers’ compensation leaders—a man who was so good at what he did that now it takes an entire governor’s advisory council to do the same work of gathering consensus for new law.

For some, all it takes is a name pulled from the past to evoke a thought, a feeling, an idea: Charles Booker of McRae, remembered by a fellow attorney as a lawyer who knew more about workers’ comp than anyone in the whole world; Doris Smith, a nurse at Nabisco in Atlanta who for twenty-three years helped both workers’ and employers head off injuries and complaints; and a client named Mary from the 1960s who so touched her attorney’s heart that years later he would say, “I can still see the look on her face. . . . The sadness will never go away.”

Memories. They, as much as the body of the law, the text an attorney studies every day, or the words he or she constantly hears and speaks, make up the history of workers’ compensation.

As Joseph Sartain of Gainesville puts it, “My law practice has been good to me, and I’m proud of the profession, and I’m proud of the honorable men that I had the pleasure of working with over the years, both judges and lawyers. This is an honorable profession, and I’m proud to be a part of it.

“It’s been a great ride, a good journey.”

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A Just & Noble Cause

INDEX G

Numbers in italics indicate photographs.

A

Gammage, E. Lamar, Jr., 26, 33, 61 Gannon, Mark S., 13, 27, 46–47, 52, 59, 67–68, 73, 78 George, H. Emily, 13, 57–59 George, Lavinia, 57–59 George, William (Bill), 56, 57–59 Georgia, state of Alternative Dispute Resolution (ADR) division, 52 Appellate Division, 52 Department of Industrial Relations, 38 Employer Liability Act (1855), 18–19 first workers’ compensation law in, 16 Industrial Commission, 25–26, 31 lawyers practicing workers’ compensation law, numbers of (2005), 26 riding the workers’ compensation circuit, 30–33 State Board of Workers’ Compensation, 25, 53. See also Kids’ Chance statehouse, 34–35, 37 workers’ compensation law, timeline for, 38–39 Workmen’s Compensation Law (1920), 28–30, 33 Georgia Association of Plaintiff’s Trial Lawyers, 35 Georgia Federation of Labor, 29 Georgia Manufacturer’s Association, 29 Georgia Trial Lawyers, 35 Germany, workers’ protection legislation in, 17 Gibson, Bobbie, 78 Globe Indemnity vs. Langford, 33 Godwin, Christie, 75 Godwin, Dave, 75 Godwin, Josh, 75 Goodman, Mark, 67 Greenholtz, Herbert T., Jr., 53 Greenholtz, Herbert, 44 Griffin, Lawton W., 53 Griffin, Marvin, 53

administrative law judges (ALJs), 31, 48, 51 Alaska, early workers’ compensation law, 16

B Barnes, Roy, 53, 73 Barrow, Charles W., 35, 63 Best, Richard W., 53 Boaz vs. K-Mart Corporation, 58, 59 Booker, Charles, 81 Bryan, Buck, 72 Bryan, Charlie, 72 Bryan, Randy, 72 Busbee, George, 44, 53

C Carson, Amanda, 72 Carswell, Altemese, 70 Carswell, Chandra, 65, 70 Carswell, Wendall, 70 Carter, Jimmy, 40, 41, 53 Chitwood, Clint, 73 Chitwood, Hannah, 73 Clark, David, 73 Clarke, Harold G., 50 Clyatt, Robert M. (Bob), 9, 23, 65–78, 81 Coley, Terrieth, 78 courtrooms, 10, 51

D Daniel, Phyllis, 72–73, 76 Dawkins, Harrill W., 53 Dean, William T., 53 Denson, Carlton, 65, 66, 73 deposition checklist, 53 Do Mai, 64 Dorsey, Hugh Manson, 25, 27 Drew, Charles Lane, 34, 41–42, 57 DuPree, J. William, 69–71 Dyer, Stonewall H., 53

H

Employer’s Liability Act (England, 1880), 17

Hall, Carolyn C., 44, 48–50, 52, 53, 64, 73 Harris, Joe Frank, 53, 73 Hawaii, early workers’ compensation law, 16 healing period, 38, 39, 46, 47 Hiers, James B., Jr., 62 Higdon, David, 22, 26, 30, 53, 62, 63, 81 Hughes, Betsy, 69 Hy Hya Ho, 64

F

I

Farrar, Curtis, 26, 32, 42, 53, 59, 75 Fulton Bag and Cotton Mills, 25

industrialization in Europe, 17 in United States, 17–21 Irvin, Harold, 46

E

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Kids’ Chance: Nothing Left Undone J

T

Javits, Jacob, 41 Johnson, Angela, 66–67 Johnson, Lester B., 48, 52, 63, 68

Talmadge, Herman E., 53 textile industry, 17, 18, 23–25 Thomas, Danny, 78 Thomas, Drew, 78, 79 Toan, 64 Tran, Hung, 68 Tran, Khanh, 68 Tran, Tommy, 65, 68 Trial Division, 50–51 Triangle Shirtwaist Company fire, 14–16 Tucker, Arlie D., 53

K Kids’ Chance, 9, 26, 52, 64–79 Kight, Jeff, 66, 74, 75–76

L lawmakers, 34–35 litigation, growth of, 22 Lowery, Roscoe, 41, 44, 53

U

M

Underwood, John, 65 United States Federal Employer’s Liability Act, 22 industrialization in, 17–21 Longshoremen’s and Harbor Workers’ Compensation Act, 41 pressuring Georgia to update workers’ compensation laws, 41 Uriegas, Betty, 68, 69

Mallard, E. Earl, 37, 43, 44, 53 Maryland, cooperative accident insurance fund, 19 McCalla, Carl W., III, 11–12 McElhaney, Amy, 71 McElhaney, James, 71 mediation, 52 Miller, Zell, 53 Mississippi, last state to adopt workers’ compensation law, 23

V

N

Vandiver, S. Ernest, 53 Virginia, first workers’ compensation law, in South, 16

W

National Association of Claimants Compensation Attorneys (NACCA), 34–35 Neal, Matthew, 67 Neal, Nicholas, 65, 67 Neal, Stanley, 67 Neill, Charles P., 16

Wall, William Alford (Al), 32–33, 35–37 Warm Springs (Ga.), 44–45 Williams, John, 42, 46–48, 63 Williams, Melanie, 77 Williams, Melinda, 77 Williams, Osgood O., 50 Williams, Walter, 77 Wilson, Woodrow, 25 Wisconsin first workers’ compensation law, 16 workplace reform in, 22–23 workers, 6–7, 18–19, 20, 24, 40, 54 workers’ compensation benefits, history of (1923–1971), 38–39 community of, uniqueness, 9 first law, 16 industry surrounding, 26–27 predecessors to concept of, 16–17 workers’ compensation law, practice of, 55–63 early conditions for, 31, 33 expansion of, 47–48 technological advances in handling cases, 11–12 numbers of Georgia lawyers practicing (2005), 26 organizing the field, 33–37 workplace posters, 31, 39, 55

O Oliver, Cheryl, 77–78 Oxendine, James W., Jr., 53, 73

P Phung Anh Ngo, 66–67

R Randall, Allie, 65 rehabilitation clause, 53 respondeat superior doctrine, 16–17 Riordan, Pat J., 53 Rockefeller, John D., 18 Roosevelt, Franklin D., 44 Roosevelt, Theodore, 21

S Sartain, Joseph B, Jr. (Joe), 31, 43, 53, 81 Smith, John Andy, Jr., 43, 46–47, 59, 81 Southwell, E. Lee, III, 35, 46, 47, 59, 81 Strain, John, 59, 61 Sunne, Celia, 64 Sweet, John F., 23, 31, 34, 48, 53, 55, 60, 61 Swift Manufacturing Company, 20–21

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