There Is No Such Thing as a Technicality

The Georgia Court of Appeals today limited the application of the so-called " Rycroft defense" in workers' compensation cases. Put most simply, the Rycroft defense allowed an employer to escape any responsibility for a work injury where the employee had knowingly and willfully made a false representation about a prior injury, the employer relied upon that injury and hired the employee as a result of that reliance, and there is a causal injury between the false representation and the work injury. Today, in McKay v. Inalfa Roof Systems, Inc., et al. , case no. A24A1422 (Ga.App. 2025), the employee had undisputedly failed to inform the employer of a prior injury to the same body part she injured in this case. The State Board found that her first injury, on June 11, 2021, was barred by the Rycroft defense. Following the June 11, 2021 back injury, but prior to returning to work, the claimant informed her supervisor both of the prior injury and her belief that the June 11, 2021 injury had aggravated it. Despite this knowledge, the employer returned her to work in the same job, on September 9, 2021, approximately two months after the accident. She then suffered a second on-the-job injury on September 14, 2021. So the timeline is roughly as follows: July 16, 2012 -- pre-employment injury due to a four-wheeler accident Late 2020 -- claimant begins work for employer and fails to disclose four-wheeler accident or injuries on post-hire questionnaire June 16, 2021 -- first injury at work September 9, 2021 -- claimant, who has now informed employer of both the July 16, 2012 injury and her belief the June 16, 2021 injury aggravated it, returns to work September 14, 2021 -- claimant suffers second injury The only issue on appeal was whether the second injury on September 14, 2021, after the employer was notified of the pre-employment injury and returned her to work anyway, was barred by the Rycroft defense. The employer argued, and the State Board of Workers' Compensation held, that it was. The McKay Court reversed that finding today. The McKay Court reasoned that: The common law underpinnings of the Rycroft defense — theories of fraud and fraudulent inducement to contract — require that a party rely on the false representation to his detriment, and that the reliance be justified. In the fraudulent-inducement-to-contract context, a party’s failure to rescind or repudiate the agreement after learning of the fraudulent representation acts as a waiver of that defense. By analogy, Inalfa’s willingness to retain McKay in the assembly operator position, after learning of her prior back injury and false representation about it, waives its right to use the Rycroft defense to deny McKay workers’ compensation benefits for the subsequent injury she suffered. The Court thus found the second, September 14, 2021 injury to be compensable. This is a victory for injured workers in the State of Georgia. If allowed to stand, the State Board's ruling would have essentially meant that employers can return employees to work, knowing in full they had a pre-employment injury, and yet never have to pay them workers' compensation benefits if they are injured. The ruling turned the Rycroft case on its head, as the Court of Appeals rightly found, by taking the fraud and reliance elements out of consideration and rendering the Rycroft defense a punitive measure rather than a remedial measure. That is, the State Board saw fit to punish the claimant for not disclosing the prior injury, rather than remediating the damage done to the employer by the failure to disclose. But Rycroft was never meant to be punitive -- it was intended to apply contract principles to the employer/employee relationship such that the employer could not be induced to hire someone who was prone to injury when that person knowingly and willfully failed to disclose the injury after being asked. We know this because the Rycroft case actually requires the employer to ask. The Rycroft Court held that an employee may not falsely respond to a questionnaire given by the employer in order to determine suitability to do the job. It did not state, or imply, that the employee has an affirmative responsibility to outline each and every injury she has ever suffered, or to disclose potential disabilities. The employer has to ask. There are many and varied reasons why this is the case, and the Rycroft Court spelled them out. Suffice it to say, it was never intended to give employers a free pass to continue to employ workers infinitely with absolutely no risk that they will ever have to pay for a work injury. The defense is intended to apply to give a remedy to an employer who was unaware of a previous injury. It was never intended to protect an employer who became aware, and the McKay Court rightly held as much.

What conduct is disorderly? "Without provocation, uses to or of another person in such other person's presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person's presence, naturally tend to provoke violent resentment, that is, words commonly called 'fighting words.'" "Use any type of profane or lewd language in a public place that is offensive to another, causes another to become outraged and thus creates a turmoil." To whom does the law apply? The other instance in this case that made it somewhat different is that one person involved was a police officer. There was no allegation or even suggestion that others heard the offensive speech. Police officers, in general are held to a higher standard, as our Court of Appeals has said, relying on United States Supreme Court precedent: "Lastly, although the State argues that 'there should not be a different standard when opprobrious and abusive language is directed toward a police officer,' the Supreme Court of the United States and other federal courts have indicated that the fighting-words exception to constitutionally protected speech 'requires a narrower application in cases involving words addressed to a police officer.' This is because a 'properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to 'fighting words.'' Additionally, as the Supreme Court has further explained, 'the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.' Indeed, the freedom of individuals verbally to 'oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.'" Knowles v. State , 340 Ga.App. 274; 797 S.E.2d 197 (Ga.App. 2017) (citations omitted). This is perhaps more obvious when considering the facts of this case. When it comes to whether the language at issue was "threatening" language, my client was unarmed, whereas the officer in question had a firearm, a Taser, and pepper spray, along with other officers present or close by. If anyone should have felt threatened, it was my client. Finally, the Supreme Court of Georgia has held that "fighting words" is not so much a function of the specific words used, but whether the person on the receiving end of them considers them sufficient to provoke violence or breach of the peace: "OCGA § 16–11–39 (a) (1) does not reach any, let alone a substantial amount of, constitutionally protected conduct. As mentioned previously, a person may only be found guilty of disorderly conduct under OCGA § 16–11–39 (a) (1) based on allegedly tumultuous conduct when he or she 'acts in a ... tumultuous manner toward another person whereby such person is placed in reasonable fear of the safety of such person's life, limb, or health." The statute on its face contains no prohibition against any particular message being communicated, and it makes clear that the level of 'tumultuous' behavior necessary to give rise to a sustainable charge must involve acts that would place another person in reasonable fear for his or her safety. In this sense, it could be argued that the statute applies only to physical 'acts' that do not implicate speech at all." Freeman v. State , 302 Ga. 181; 805 S.E.2d 845 (2017). On a side note, 2017 was apparently a banner year for free speech in Georgia. So I can cuss out police officers with impunity, right? Not so fast. First, the fact that the words in the above cases, like the words in my case, did not amount to "fighting words," does not in any way mean that other words might not. Use of racial slurs, threats, comments about the officer's family, or other such words might lead reviewing courts to apply the statute or municipal code differently. As a general rule, it is best not to go around cursing at anyone, let alone someone who can arrest you and put you in jail, however temporarily. Second, even if you are Constitutionally protected, my client had to be arrested, go to jail, bond out, and hire me to get out of this predicament. Whether he could sue the municipality in question and win is perhaps a legitimate question. What he would get out of that is perhaps the bigger question. You can sue someone and "win," yet still "lose" in the sense that it costs you more to litigate than you can possibly recover. So the fact that my client did not commit a crime does not mean his conduct was helpful, or worth the trouble. I believe he would be the first to tell you that. Third, let's suppose the prosecutor in question was disinclined to dismiss the charges. My client would have to stand trial, risking a conviction and sentence on both charges. If convicted, he would have to appeal. By the time this case wound its way to the state Supreme Court (I'd like to think this case would not rise to the Federal level), we are no longer talking about thousands of dollars, but tens of thousands of dollars. And while I think the dismissal of the charges is a good indication that he would probably win, at least on appeal if not at trial, once you go before the judge there are no guarantees. So why was there no conviction on resisting arrest? Good question! In this case, there is no question my client resisted arrest. However, the arrest in question was for disorderly conduct, a crime he did not commit, and which the officers lacked probable cause to believe he committed. It is not a crime to resist an unlawful arrest. Because the unlawful arrest led to the charge of resisting, that charge could not stand either. So you think it's okay to swear at police officers? Not at all! I don't blame the officer in this case for being upset at the language used. I don't blame her for thinking this might be disorderly conduct (everyone makes mistakes). Police officers have a tough job, and as noted above, are held to a higher standard than you or I. It's not an easy thing to listen to someone verbally accost you and have to just swallow your pride and take it. But that, ultimately, is what the law required in this case, on these facts. The fact that something is not a crime does not mean it is advisable. We all have bad days. My client had a bad day when he was arrested. The officer had a bad day when she made an unlawful arrest on charges that were ultimately dismissed in the interests of justice. The city had a bad day in that it had to bring charges, house my client, process bond, and ultimately have a prosecutor paid by the city come in and dismiss the charges, so a lot of time and money were wasted. But in the end, justice was done. I would like to think everyone can call that a good day. Each of us is better than our bad days. But if you have a bad day, know your rights so you can hopefully keep it from getting any worse.

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5 Common Mistakes to Avoid When Filing a Workers’ Compensation Claim

A frequent comment I get from workers' compensation inquirers is "I don't know if I even need a lawyer for this." And often, they are right. But how do you know? Often, a case where a lawyer should have been hired, but was not, is far more difficult and far less likely to end with the client treated fairly as compared to a case where a lawyer was hired from the start.

When charged with a crime, sometimes it's easy to assume that you have plenty of time to hire an attorney and defend the case. Sometimes, especially with a traffic citation, even a serious one like a DUI, you may even think you can handle it yourself. Be wary.

I am an attorney. I represent clients for a living. That means I have to do this in order to earn money to feed my family. But if that were the only reason I did it, I would lead an empty life indeed.

If you've never hired a lawyer before, it can sometimes be difficult to know what to expect. And the truth is, often what you can expect will differ depending on the type of lawyer you hire. In my practice, I am fortunate to help people who need assistance navigating difficult times in their lives. This means my clients are rarely calling me during the best times in their lives. This post will outline what I consider to be good legal service and competent representation, as well as the simple day-to-day handling of a particular case.