United States Court of Appeals, Eleventh Circuit.

No. 94-9459.

Eric DOSS, Plaintiff-Appellee,

v.

FOOD LION, INC., Defendant-Appellant.

May 21, 1996.

Appeal from the United States District Court for the Southern

District of Georgia. (No. CV 293-145), Anthony A. Alaimo, Judge.

Before EDMONDSON, DUBINA and BARKETT, Circuit Judges.

BARKETT, Circuit Judge:

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA PURSUANT TO

ARTICLE 6, SECTION 6, PARAGRAPH 4 OF THE GEORGIA CONSTITUTION.

TO THE SUPREME COURT OF GEORGIA AND ITS HONORABLE JUSTICES:

This case comes to the United States Court of Appeals for the

Eleventh Circuit on appeal from the district court's denial of Food

Lion's motion for summary judgment in this diversity action brought

by Eric Doss. Food Lion had employed Doss as a stock clerk, and

was responsible under the Georgia Worker's Compensation Act,

O.C.G.A. § 34-9-1 et. seq. ("the Act"), for providing his health

care after a co-worker injured Doss by hitting him in the head with

a box of chocolates. After Food Lion delayed authorizing treatment

of Doss' psychological and psychiatric injuries, Doss brought this

common-law tort action alleging that such delay constituted an

intentional aggravation of Doss' work-related injuries.

 The issue in this case is whether Doss' claim is actionable

as an independent tort under Georgia law, or barred by the

exclusive-remedy provision of the Workers' Compensation Act. The

district court certified, and we granted, an order for immediate
review of this issue as one involving "a controlling question of

law as to which there is substantial ground for difference of

opinion." 28 U.S.C. § 1292(b). We have determined that this

question of Georgia law is dispositive of this case, but unanswered

by the clear controlling precedent of the Supreme Court of Georgia.

We therefore certify this question for resolution by the highest

court of Georgia.

 Under O.C.G.A. § 34-9-11(a), "the Georgia Workers'

Compensation Act is now the exclusive remedy for injuries sustained

by an employee during the course of employment resulting from the

negligence of a co-worker." Dickey v. Harden, 202 Ga.App. 645,

646, 414 S.E.2d 924 (1992). The Act also bars an independent

action for intentional torts committed by one worker against a

co-worker, unless the tortious act was committed for personal

reasons unrelated to the conduct of the employer's business.

Murphy v. ARA Svcs., 164 Ga.App. 859, 862-63, 298 S.E.2d 528

(1982). In Johnson v. Hames Contracting, Inc., 208 Ga.App. 664,

431 S.E.2d 455 (1993), the Georgia Court of Appeals held that

"[w]hen an employee's injuries are compensable under the Act, he is

absolutely barred from pursuing a common law tort action to recover

for such injuries, even if they resulted from the intentional

misconduct on the part of the employer." Id. at 667, 431 S.E.2d

455.

The Act defines "injury" or "personal injury" as including

"the aggravation of a preexisting condition by accident arising out

of and in the course of employment." O.C.G.A. § 34-9-1(4). Doss

contends that the Act does not provide a remedy for the intentional
physical aggravation of his work-related injury. He argues that

because the Act provides no mechanism by which a claimant may be

compensated for the physical worsening of a work-related injury

sustained due to an employer's unreasonable delay in authorizing

medical treatment, such a claim falls outside the purview of the

Act. The Georgia case law, however, is unclear on whether the Act

bars Doss from bringing an action in tort for physical aggravation

of his work-related injury where Food Lion has intentionally

delayed authorizing his medical treatment.

 Although a "remedy provided by th[e] statute is exclusive

within the field of its operation ... it does not exclude redress

in cases to which it is not applicable." Covington v. Berkeley

Granite Corp., 182 Ga. 235, 237, 184 S.E. 871 (1935). In

Covington, the Supreme Court of Georgia went on to say that "the

right to bring an ordinary action for damages is not excluded by

the statute as to injuries which do not fall within its terms."

Id. at 238, 184 S.E. 871 (quotation omitted). For example, the

Georgia Court of Appeals in Jim Walter Homes v. Roberts, 196

Ga.App. 618, 396 S.E.2d 787 (1990), held that although the

claimant's "original injury occurred within the scope of her

employment," her alleged "intentional physical injury resulting

from [the employer's] refusal to authorize necessary medical

treatment.... sets forth a common law cause of action which the

trial court had jurisdiction to decide." Id. at 620-21, 396 S.E.2d

787. In Maulden v. Liberty Mutual Insurance Co., 824 F.Supp. 212

(1992), the district court reasoned from Jim Walter Homes that a

workers' compensation claimant could pursue her compensation
carrier also for a wrongful delay in authorizing her medical

treatment, stating that "an action for physical aggravation of an

injury is not precluded by the ... Georgia Worker's Compensation

Act." Id. at 214.

Food Lion argues that Doss is precluded from bringing a

separate action in tort based in part upon the Supreme Court of

Georgia's holding in Bright v. Nimmo, 253 Ga. 378, 320 S.E.2d 365

(1984). In Bright, the Court held that an employer's intentional

delay in the payment of income benefits is an "intentional

financial injury" exclusively remedied by O.C.G.A. § 34-9-221(e).

Doss contends that he has not sustained an intentional financial

injury, but instead has sustained an aggravation of his

work-related injuries due to the intentional delay of Food Lion in

authorizing his medical treatment. Doss points out that Bright

distinguishes an employer's intentional financial injury from an

intentional physical injury such as Doss claims here:

[W]e 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

... deals solely with income benefits (as opposed to benefits

for medical, surgical, hospital, etc., care).

Bright, 253 Ga. at 381, 320 S.E.2d 365, cited in Jim Walter Homes,

196 Ga.App. at 620-21, 396 S.E.2d 787.

Food Lion responds, however, that the Supreme Court of

Georgia's decision in Aetna Casualty & Surety Company v. Davis, 253

Ga. 376, 320 S.E.2d 368 (1984), decided on the same date as Bright,

is controlling. Aetna Casualty held that a workers' compensation

claimant was precluded from bringing an independent action for

breach of contract and tortious breach of contract because the
Act's provision of attorneys' fees, O.C.G.A. § 108(b), is a

"penalty for an insurer's controverting medical payments without

reasonable grounds and therefore the employee's use of common law

remedies is excluded." Id. at 377-78, 320 S.E.2d 368.

Nonetheless, the Supreme Court of Georgia has not squarely

addressed the issue of whether a claim for physical aggravation of

a work-related injury resulting from an employer's intentional

delay in authorizing medical treatment is outside the purview of

the Workers' Compensation Act, and thus gives rise to an

independent cause of action against the employer or its insurer.

Accordingly, we certify the following question to the Supreme

Court of Georgia for resolution:

1. DOES GEORGIA LAW RECOGNIZE AN INDEPENDENT CAUSE OF

ACTION APART FROM ANY REMEDY AVAILABLE UNDER THE GEORGIA

WORKERS' COMPENSATION ACT WHERE AN EMPLOYER AND/OR INSURER HAS

INTENTIONALLY DELAYED AUTHORIZING MEDICAL TREATMENT TO WHICH

AN EMPLOYEE IS ENTITLED UNDER THE ACT AND WHERE SUCH DELAY HAS

EXACERBATED A WORK-RELATED PHYSICAL INJURY?

The particular phrasing of this question is not intended to

limit the Supreme Court of Georgia in its consideration of the

various problems and issues posed by the entire case as it

perceives them to be. In order to assist the determination, the

entire record and the briefs of the parties shall be transmitted to

the Supreme Court of Georgia.

QUESTION CERTIFIED.