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Recent Developments In Change In Condition

March 03, 2007 BY Def Admin

The firm recently obtained a very notable victory before the Georgia Court of Appeals in the case of Reliance Electric Co. v. Brightwell.  This Court of Appeals decision is favorable for employer/insurers inasmuch as it confirms the principle that substance should take precedence over form in regard to the employer/insurer’s burden of establishing a change in condition for the better.

The primary issue before the Court of Appeals was whether the failure to provide a claimant with ten days notice prior to the suspension of benefits (based upon a regular-duty release from a treating physician) precludes an employer/insurer from establishing a change in condition for the better as of a date certain.  In this claim, the claimant developed carpal tunnel syndrome (CTS) in her right wrist on February 28, 2002.  This injury was accepted as compensable by the employer/self-insurer.  Thus, TTD benefits were commenced once the CTS forced the claimant out of work and she required surgery. 

By July 25, 2003, the employer/self-insurer obtained a regular duty work released from the authorized treating physician (ATP).  Consequently, the employer/self-insurer completed a Board form WC-2 on July 29, 2003 indicating that the claimant’s TTD benefits were to be suspended as of August 10, 2003, based upon the ATP’s July 25, 2003 regular duty release.  Attached to the WC-2 filed with the Board was a copy of the regular-duty release, as required by O.C.G.A §34-9-221 and Board Rule 221.

While the WC-2 was dated July 29, 2003, the Board did not file-stamp the WC-2 until August 4, 2003. Consequently, the claimant was effectively provided only six days notice prior to suspension. 

The claimant requested a hearing seeking recommencement of her TTD benefits, contending that she was not capable of unrestricted work.  The claimant postponed the hearing on several occasions as she attempted to persuade the ATP to place her back on restricted duty, albeit unsuccessfully.  In addition, she sought an IME from another physician, who nevertheless concluded that she was capable of unrestricted work.

After several delays occasioned by the Claimant, the claim was eventually tried on January 12, 2005 before an ALJ.  The parties stipulated that since the employer/self-insurer had suspended benefits based upon a regular-duty release without a return to work, they had the burden of proof on the issue of change in condition.  At the hearing, the employer/self-insurer impeached the claimant on several material issues.  In addition, the employer/self-insurer tendered opinions from the ATP and the claimant’s own IME physician indicating that the claimant was capable of regular-duty work at the time her benefits were suspended.

The ALJ issued his award on March 15, 2005.  What was interesting about his award was that although he found that the claimant was not credible and that the medical evidence showed that she was capable of unrestricted work at the time her benefits were suspended, the employer/self-insurer were not permitted to suspend benefits on August 10, 2003.  Instead, the ALJ found that the date of filing with the Board was August 4, 2003 (although the Board form itself was dated at least 13 days before the date of suspension). 

Consequently, the ALJ found that the claimant was given only six days prior notice of suspension, instead of the requisite ten.  Board Rule 221 states that the date of filing for purposes of determining when a WC-2 is filed is the date the Board file stamps the form as received, regardless of what date the Board form is dated. 

Once again, while the ALJ agreed that the medical evidence established the claimant’s ability to return to unrestricted work as of the date her benefits were actually suspended, the ALJ nevertheless found that, due to this procedural error, she was entitled to benefits from the date they were suspended until the time of his March 15, 2005 award.  In other words, although he found that the claimant was “not credible,” he nevertheless ordered the employer/self-insurer to pay an additional seventeen months of TTD benefits to her.  Therefore, the ALJ focused upon the procedural form surrounding the filing of the WC-2, rather than its substantive consequence of indicating the Claimant was capable of regular duty work. 

The employer/self-insurer appealed the ALJ’s decision to the Full Board.  Unfortunately, the Full Board essentially left the ALJ’s decision untouched, with one minor exception.  The Full Board found that the employer/self-insurer could suspend benefits as of the date of the January 12, 2005 hearing, as opposed to having to pay until the time of the ALJ’s March 15, 2005 award.  Basically, the Full Board, like the ALJ, chose to emphasize form over substance.

Following the Full Board’s decision, the employer/self-insurer appealed to the Superior Court of Clarke County.  It is very difficult to get the Superior Court to overturn a decision of the Board, since the standard of review is “any evidence.”  In other words, if there is any evidence to support the Board’s finding, the Superior Court may not reverse the decision.  However, the Superior Court may correct errors of law. 

Based upon this standard of review, the employer/self-insurer argued that the Board committed legal error by ordering the recommencement of TTD benefits due to this purported procedural defect, despite finding that the claimant was capable of unrestricted work at the time benefits were originally suspended.  Specifically, the employer/self-insurer relied upon the Court of Appeals’ earlier decision in Sadie G. Mays Mem. Nursing Home v. Freeman.  In the Freeman case, the court found that a procedural error in suspending benefits did not preclude an employer/insurer from establishing a change in condition as of a date certain. 

While this decision was rather old (from 1982), it had never been overruled.  Thus, the employer/self-insurer argued that it remained good law.  Despite the holding in Freeman, the claimant argued that it did not apply and instead, relied upon the later Court of Appeals decision of Russell Morgan Landscape v. Velez-Ochoa.  In Velez-Ochoa, the employer/insurer suspended the claimant’s benefits and, on the WC-2 they filed, indicated that the suspension was due to the claimant’s failure to comply with authorized medical treatment.  However, at the hearing, the employer/insurer argued that the suspension was due to the claimant’s ability to return to work without restrictions.  The Court found that the WC-2 was wholly defective such that the claimant could not have been provided adequate notice of the reason for suspension at the times benefits were suspended; instead, the Court held that the claimant was only aware of the reason for termination by the time of the hearing.             

Returning to the present claim, the Superior Court reiterated that any evidence standard and, moreover, concluded that it found no error of law.  Therefore, the Superior Court affirmed the Board’s findings. Consequently, the employer/self-insurer petitioned the Court of Appeals to hear the case.  Since an appeal to the Court of Appeals is not automatic, the Court decides whether it will hear the claim and thus, accepts a relatively few number of petitions they receive.  Therefore, it is very difficult to get the Court of Appeals to hear a case.

Fortunately, the Court of Appeals agreed to hear the claim after reviewing the employer/self-insurer’s petition.  By February 19, 2007, the Court of Appeals rendered its decision.  The Court of Appeals held that the procedural defect in failing to provide ten days notice to the claimant prior to suspension did not require the employer/self-insurer to continue paying TTD until the January 12, 2005 hearing, i.e. another 17 months of benefits. 

Instead, the Court of Appeals held that the claimant was simply entitled to only four more days of TTD benefits since she was given only six days prior notice of suspension, as opposed to the requisite ten.  The Court also acknowledged that such a procedural defect might subject the employer/self-insurer to the assessment of attorney’s fees and/or a civil penalty.  Therefore, the Court of Appeals remanded the case to the Board to issue a decision consonant with their ruling.

In reviewing the Court of Appeals’ decision, it is clear that they spotted the unjust windfall the claimant stood to receive if the Board’s decision was upheld.  Indeed, the court noted that the medical evidence clearly established a change in condition for the better and that the Claimant was capable of regular duty as of the date her benefits were originally suspended.  Therefore, the Court appropriately failed to see the logic of compelling the employer/self-insurer to pay an additional 17 months of TTD benefits to a claimant who was otherwise capable of regular-duty work during this relevant time period. 

The Court of Appeals further reasoned that while the claimant may have only received six days notice prior to suspension, she nevertheless knew by the original date of suspension that her benefits terminated based upon her release to regular duty by the ATP.  Furthermore, the Court pointed out that the claimant did not even raise the issue of the purportedly defective WC-2 filing at the hearing. 

In arriving at its decision, the Court of Appeals affirmed that the Freeman decision remains good law.  Moreover, they chose to focus on the substantive issue of whether the evidence, i.e. the claimant’s testimony and medical evidence, supported a change in condition for the better during the time period the employer/self-insurer terminated indemnity benefits.

In viewing the Court of Appeals’ decision, it must be emphasized that the proper filing of Board forms such as a WC-2 is still essential to sufficiently protect the interests of an employer/insurer.  For example, based upon the Court’s reasoning, had the employer/self-insurer failed to file a WC-2 altogether, this presumably would have yielded a different result.  In other words, had no WC-2 been filed, the claimant would have no idea as to why her benefits were suspended.  Therefore, in such a scenario, the Court would likely uphold a recommencement of TTD benefits at least until the time of the hearing when it could be established that the claimant was aware of the reason for the suspension.  Furthermore, as we have seen in other Court of Appeals decisions, the failure to properly file board forms can have rather deleterious results, particularly when it involves a potential statute of limitations defense.  Fortunately, in the instant claim, the Court of Appeals did not lose sight of the substantive issue that underlies most workers’ compensation claims, which is whether the employee has recovered from the work injury such that he/she is capable of unrestricted work. 

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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. 

Editorial Board:

H. Michael Bagley
(Editor-in-chief)