September 03, 2015 BY Thomas Cauthen
The WC-104: Strict Compliance Is Key
The WC-104 is a favored tool of employers and insurers that is utilized in order to reduce the indemnity exposure in a claim and as a bargaining chip to induce settlement. However, it is important for defense counsel and their clients to properly understand the process in order to avoid a successful challenge to the validity of the WC-104 by the employee’s counsel. Failing to dot the “i’s” and cross the “t’s” in the WC-104 process can lead to additional exposure for the employer/insurer by prolonging the life of a claim; thereby depriving the employer/insurer of a valuable statutory tool.
Recently, employees’ attorneys, who are quick to seize on any misstep and describe O.C.G.A. § 34-9-104(a)(2) as a draconian measure, have begun to formulate creative arguments for attacking the employer/insurer’s ability to use the WC-104 to unilaterally reduce the employee from total temporary disability (TTD) benefits to total partial disability (TPD) benefits, further underscoring the need to strictly comply with the statute. Although the plain language of the statute may seem clear, it bears repeating. “When an injury is not catastrophic, as defined in subsection (g) of Code Section 34-9-200.1, and the employee is not working, the board shall determine that a change in condition for the better has occurred and the employee shall be entitled to the payment of benefits for partial disability in accordance with Code Section 34-9-262 if it is determined that the employee has been capable of performing work with limitations or restrictions for 52 consecutive weeks. Within 60 days of the employee's release to return to work with restrictions or limitations, the employer shall provide notice to the employee on a form provided by the board that will inform the employee that he or she has been released to work with limitations or restrictions, will include an explanation of the limitations or restrictions, and will inform the employee of the general terms of this Code section. In no event shall an employee be eligible for more than 78 aggregate weeks of benefits for total disability while such employee is capable of performing work with limitations or restrictions.” O.C.G.A. § 34-9-104(a)(2) (emphasis added).
Simply put, the employer/insurer have two major obligations that must be met in order to reduce the employee from TTD to TPD pursuant to the WC-104. First, the employer/insurer must file a the WC-104 with the Board and serve the employee and the employee's attorney with WC-104 no later than 60 days from the date the employee was released to work with restrictions by the employee's authorized treating physician. Failing to remit the form to the employee and his counsel in addition to filing it with the Board result in the WC-104 being null and void.
Secondly, prior to filing the WC-104 and serving a copy on the employee and his counsel, the employer/insurer must attach to the WC-104 the supporting medical report from employee's authorized treating physician demonstrating the employee is capable of performing work with restrictions. Although a recent State Board of Workers’ Compensation Appellate Division decision, 2004-034727 Appeal, backtracked slightly from the requirement that the employee must be physically evaluated by the authorized treating physician within 60 days for the WC-104 to be valid, best practices dictate that the employee should be examined by the authorized treating physician in order to avoid prolonged litigation. (In 2004-034727 Appeal, the Appellate Division reversed the Trial Division holding that the employer/insurer complied with the WC-104 procedure and Board Rule 104 by sending the employee’s FCE report to the authorized treating physician, which he adopted via a written report without evaluating the employee. The employer/insurer later filed the WC-104 within 60 days of the date on the authorized treating physician’s report, even though more than 60 days had passed since the FCE itself. The Appellate Division reasoned that the employer/insurer’s conduct complied with the statute, as the employer/insurer filed the WC-104 within the time prescribed and based upon a reasonably concurrent examination (FCE) and determination of the employee’s condition (the authorized treating physician’s review and adoption of the FCE restrictions), not a mere affirmation of an otherwise untimely examination. The Appellate Division went to great lengths to distinguish these facts from Imerys Kaolin, Inc. v. Blackshear, 306 Ga. App. 491, 494, 702 S.E.2d 440, 443 (2010) in which the WC-104 provided to the employee was voided by the Court of Appeals because “was generated over five months from the last medical evaluation and over four months from the functional capacity evaluation referenced in that notice."
The fact that the employer/insurer must strictly comply with the black letter of O.C.G.A. § 34-9-104 is not a new proposition, but rather a point that warrants review in light of recent challenges. Several employees’ counsels have suggested that in light of the Metro. Atlanta Rapid Transit Auth. v. Thompson, 326 Ga. App. 631, 757 S.E.2d 228 (2014) decision, the employer/insurer must actually tender a job offer commensurate with the employee’s light duty restrictions in order to reduce him from TTD to TPD at the expiration of 52 consecutive or 78 aggregate weeks of being released to work with restrictions. In Thompson, MARTA correctly filed a WC-104 and served the employee and her counsel with the form and accompanying light duty release from the authorized treating physician. However, the employee returned to work pursuant to a transitional duty job offered by MARTA, so her TTD benefits were suspended based on her actual return to work. After she had worked in the transitional duty program for 52 weeks, she was not allowed to continue in the program, and the employer/insurer filed a WC-2 recommencing TTD benefits. It was not until five months later that employer/insurer filed another WC-2 attaching the original WC-104 and reduced the employee to TPD. It was in this seemingly arbitrary action that MARTA ran afoul of the statute and the Court.
The contention that the employer/insurer must offer a light duty job is based on a thinly veiled argument extrapolated from the Court of Appeals’ discussion of the spirit and purpose of O.C.G.A. § 34-9-104; to encourage injured employees to return to work. The Court reasoned that MARTA’s actions violated the underlying basis of the statute because it paid TTD benefits for approximately five months following end of the transitional program and then capriciously reduced the employee from TTD to TPD. Id at 631, 229. Although it rejected MARTA’s contention that the only relevant period the employee must not be working is the date on which the conversion from TTD to TPD takes place, nowhere in the opinion does the Court interpret the statute to require a light duty job offer as a prerequisite for the conversion. In fact, the Court reiterates the plain language of O.C.G.A. § 34-9-104(a)(2) in footnote 1 by reaffirming that MARTA is correct in its assertion that the statute creates two conditions which must be met before a unilateral reduction can occur: (1) the employee is not working and (2) the employee must be released to work with restrictions for 52 consecutive weeks. Id at 635, 232.
Moreover, some have argued that after a WC-104 is filed based on the employee’s release to return to work with restrictions, specifying that the employee will be converted from TTD to TPD 52 weeks following the employee’s release unless he returns to work at an earlier date, and then the employee is subsequently restricted from all work by the authorized treating physician, the employer/insurer must file a second WC-104 with the original date of the light duty work release, notifying the employee and his counsel of the day on which the 78th aggregate week of being released to work with restrictions will elapse, and the employee will be reduced to TPD. Although the purpose of the statute and filing of the form is to provide the employee with notice, and this may be an advisable practice, this author uncovered no Court of Appeals, Appellate Division, or Trial Division decisions where the failure to file a second WC-104 notifying the employee of the new conversion date barred employer/insurer from exercising their statutory right to convert the employee from TTD to TPD at the end of 78 aggregate weeks. Furthermore, a plain reading of the statute and corresponding Board Rule 104 does not contemplate filing a second WC-104.
The takeaway from this discussion is simple. The employer/insurer and their counsel must be vigilant in their adherence to the clear and unequivocal language of the statute. The filing and tendering of the WC-104 to the employee and his counsel within 60 days of the employee’s release to return to work with restrictions by the authorized treating physician, as well as ensuring that the physician’s note is attached to the form, will enable employers and insurers to realize significant savings by reducing the value of the claim and likely shortening its lifespan.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice applicable to any specific circumstance. Legal opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley