July 01, 2007 BY Stephen Graham
Avoiding Procedural Pitfalls In Statutory Change In Condition Cases
O.C.G.A. §34-9-104(a)(2), first enacted in 1992 as part of a substantial revision of the Workers’ Compensation Act, has proven invaluable to employers and insurers in reducing their overall economic exposure in cases where a claimant has been released to return to light-duty work by the authorized treating physician but, for any number of reasons, has failed to do so. However, the State Board, supported by the Georgia Court of Appeals, has repeatedly emphasized that the statute, as well as the corresponding Board Rule, are to be strictly construed. The failure to comply with the statute’s procedural requirements can often thwart an employer/insurer’s good faith efforts to convert a claimant from temporary total disability benefits to temporary partial disability benefits. This article will address recent case law in this area as well as highlight some of the most common procedural pitfalls.
Generally speaking, an employee may continue to receive temporary total disability benefits for a period of 52 consecutive (or 78 aggregate) weeks following a determination that he or she is capable of performing work with limitations or restrictions. Once this period has expired, the employee will be deemed to have undergone a statutory change in condition pursuant to O.C.G.A. §34-9-104(a)(2) and the employer may unilaterally convert the employee from temporary total disability benefits to temporary partial disability benefits. This rule applies to all non-catastrophic cases occurring after July 1, 1992.
It is important to note that if there is a break in the 52 week period following a light-duty release, then 78 aggregate weeks must expire before the employer can convert the employee from temporary total to temporary partial disability benefits. This can occur if the employee is taken completely out of work by the authorized treating physician or if the employee actually returns to work for the employer. In the first scenario, the clock begins to run again once the employee is given light duty-restrictions; in the second scenario, when the claimant goes back out of work.
To initiate the conversion from temporary total disability benefits to temporary partial disability benefits, the employer must notify the employee and the employee’s attorney by filing Form 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. Board Rule 104 also requires that the employer/insurer attach the medical report demonstrating the employee is capable of performing work with restrictions. Following the expiration of the applicable time period (52 consecutive or 78 aggregate weeks) the employer/insurer may unilaterally convert the employee’s income benefits from temporary total to temporary partial by filing a Form WC-2 with the Board. When filing the WC-2, the employer/insurer must attach the previously filed Form WC-104 and attached medical report. Additionally, copies must be served on the employee and the employee’s attorney, if represented.
Since the enactment of O.C.G.A. §34-9-104(a)(2) in 1992, several questions have arisen regarding its construction. For instance, whether the filing of the WC-104 is mandatory before the reduction of benefits from temporary total to temporary partial can take place. The statute specifically states that “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.” Therefore, there was some question as to whether the 78-week limit on temporary total disability benefits was conditioned on compliance with the provision for notice from the employer to the employee within 60 days of the employee’s release to return to work with restrictions or limitations. The Court of Appeals resolved this question in the case of City of Atlanta vs. Sumlin. 258 App. 643, 547 S.E.2d 827 (2002).
In Sumlin, the employee was injured on December 4, 1997 and placed on temporary total disability benefits. His authorized treating physician released him to work with limitations on October 29, 1998. The same doctor then reaffirmed, on July 27, 2000, that Sumlin was able to work with the same limitations contained in her 1998 release. On August 14, 2000, the employer filed a WC-104 seeking to reduce his benefits with the State Board and served a copy on Sumlin. Attached to that WC-104 were both the 1998 initial doctor’s release along with the 2000 reaffirmation. The ALJ found that the reaffirmation was insufficient to fulfill the requirements of Rule 104 for an attached medical report from the authorized physician. Therefore, the employer did not provide the required notice to Sumlin within 60 days of his release to return to work with restrictions in 1998 and, consequently, the employer had not complied with O.C.G.A. §34-9-104 or Board Rule 104.
The Court reaffirmed this strict interpretation in the 2005 case Marta v. Bridges. 276 App. 220, 623 S.E.2d 1 (2005). There, the employee aggravated preexisting problems with his right knee and back while at work on October 24, 2001. The injury was accepted as compensable and the employee was subsequently released to light duty work by the authorized treating physician, Dr. Dawkins, on November 9, 2001. A WC-104 to this effect was filed with the Board. On January 9, 2002, the employee underwent knee surgery with Dr. Bernot and was released to regular duty work in April, 2002. Accordingly, the employer filed a Form WC-2 suspending the employee’s benefits.
The employee challenged the suspension and a hearing was held on September 5, 2002. The ALJ issued an award on November 1, 2002 in which he found that the employee’s condition had not changed for the better and ordered the recommencement of temporary total disability benefits from April 5, 2002 forward. On January 21, 2003, the employer converted the employee from temporary total to temporary partial disability benefits pursuant to a Form WC-104 which the employer based on Dr. Bernot’s conclusions about the employee’s condition in February 2002. On July 21, 2003, the employer suspended all income payments to the employee based on its claim that the aggravation of his condition by his work had ceased. The employee again requested a hearing where it was determined that both the reduction and suspension of the employee’s indemnity benefits was improper.
On appeal, the Court affirmed the ALJ’s award, finding that the employer had failed to meet the requirements of O.C.G.A. §34-9-104(a)(2). The court noted that Dr. Bernot’s medical report was the basis upon which the employer sought the original change in condition. Although it was stipulated that the employer/insurer filed Form WC-104 following the light-duty release by Dr. Bernot, the document was not contained in the record and therefore could not be considered in determining whether the employer complied with the statutory requirements.
The Court also found that the employer was precluded from relying upon the Dawkins medical report and the earlier filed WC-104 because the claimant’s subsequent knee surgery with Dr. Bernot was clearly a change in his physical condition rendering him temporarily totally disabled. Following his return to light-duty status by Dr. Bernot, the employer failed to file a WC-104 with the Board with a medical report indicating that the claimant was able to return to light duty. Lastly, the court rejected the employer’s argument that the aggregate of 78 weeks had expired since it ruled that the employer had failed to strictly comply with the statue.
This case reiterates the need for employers/insurers to be especially contentious in following the guidelines set out in O.C.G.A. §34-9-104(a)(2) and Board Rule 104. If done properly, a conversion to temporary partial disability benefits pursuant to a Form WC-104 can significantly reduce the exposure to employer/insurer’s in many cases.
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