This case is here on a certified question from the United States Court of Appeals for the Eleventh Circuit. The statement of facts as recited by that court follows:
“The plaintiff, Rufus Bright, Jr., suffered an employment-related injury on July 3, 1981, and filed for Workers Compensation benefits. His employer, American Cyanamid Company (ACC), and the employer’s insurer, Insurance Company of North America (ICNA), contested the claim to the Workers Compensation Board and refused to make payments to the plaintiff. The defendants’ controversion of the claim was untimely filed in violation of OCGA § 34-9-221 (d).
“The Board found that the defendants had notice of the compensable injury on July 3rd, and had ‘without reasonable grounds’ failed to comply with the Act’s requirements for controverting the plaintiffs claim for benefits. Pursuant to OCGA § 34-9-221 (e), the Board awarded the plaintiff a fifteen per cent statutory penalty and attorney fees, in addition to his income benefits, for failing to comply with the Act’s provisions.
“The plaintiff subsequently brought suit alleging, inter alia, that the defendants had ‘willfully and intentionally’ delayed these payments to the plaintiff, resulting in adverse financial consequences and foreclosure upon his home. The defendants moved for summary judgment on the ground that OCGA § 34-9-221 (e) was the plaintiffs sole remedy for delayed payment of benefits and, therefore, plaintiff had *379 no independent cause of action outside the Act. The district court granted summary judgment finding it unnecessary to decide if the defendants had intentionally delayed payments, because it determined that the Georgia courts, unlike other jurisdictions, have not decided such a cause of action exists independent of the Act’s penalty provisions. The plaintiff has appealed from the summary judgment order.”
The Eleventh Circuit then certified the following question to this court:
“Does Georgia law recognize an independent cause of action apart from the remedies available under OCGA § 34-9-221 (e) where the employer and/or insurer have allegedly intentionally delayed Workers Compensation payments that the employee is entitled to under the Act and where they have not properly complied with the Act’s requirements?”
The record shows that the plaintiff was injured on July 3, 1981, and the Board found that the employer had notice of the injury on that date. The defendants’ untimely notice to controvert was filed on October 7, 1981. A hearing scheduled for October 14 was continued by the administrative law judge at defendants’ request to November 9. Following that hearing, the award was rendered in plaintiff’s favor on December 16, and was paid to date by ICNA on December 27, 1981, including the attorney fees and 15% penalty.
In general, our workers’ compensation law provides benefits to an employee injured “by accident arising out of and in the course of the employment.” OCGA § 34-9-1 (4).
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The law provides that “The rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury . . . .” OCGA § 34-9-11. The limitations of liability afforded by the law to an employer extend to the employer’s workers’ compensation insurer. OCGA §§ 34-9-1 (3), 34-9-11;
Sims v. American Cas. Co.,
OCGA § 34-9-11, supra, has been interpreted consistently to mean that, “where the workers’ compensation law is applicable, it provides the employee’s exclusive remedy against his employer.”
Freeman v. Ryder Truck Lines, Inc.,
Intentional injuries warrant special consideration. In
Smith v. Rich’s, Inc.,
In
Helton v. Interstate Brands Corp.,
In the question certified to us, it is stated that plaintiff alleges that the defendants wilfully and intentionally delayed paying workers’ compensation benefits to him (until the Board entered its award), that the Board awarded 15% statutory penalty plus attorney fees, and that the defendants’ delay caused plaintiff adverse financial con *381 sequences and foreclosure upon his home. (We note that almost every delay in payment by a solvent payor will be wilful and intentional with the consequences upon the payee being dependent upon the payee’s financial circumstances.)
Thus, we are faced not with an alleged intentional physical injury by the employer but with an alleged intentional financial injury. The defendants argue that OCGA § 34-9-221 (e) provides the exclusive remedy available to plaintiff. That subsection, which deals solely with income benefits (as opposed to benefits for medical, surgical, hospital, etc., care), provides: “If any income benefits payable without an award are not paid within 14 days after becoming due, there shall be added to the accrued income benefits an amount equal to 15 percent thereof, which shall be paid at the same time as, but in addition to, the accrued income benefits unless notice is filed under subsection (d) of this Code section or unless this nonpayment is excused by the board after a showing by the employer that owing to conditions beyond control of the employer the income benefits could not be paid within the period prescribed.” OCGA § 34-9-108 (b) makes provision for attorney fees.
In
Raines & Milam v. Milam,
As pointed out by the Eleventh Circuit, some other jurisdictions have held that intentional delay of compensation payments gives rise to an independent cause of action. The grandfather case so holding was Stafford v. Westchester Fire Ins. Co.,
Certified question answered in the negative.
Notes
OCGA § 34-9-1 (4), supra, excludes from the definition of injury, “injury caused by the willful act of a third person directed against an employee for reasons personal to such employee . . . .”
For other cases involving intentional acts of officers and employees of the employer, see
Samuel v. Baitcher,