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Recent Change In O.C.G.A. § 34-9-104 And The Value Of BOARD FORM WC-104

January 04, 2014 BY Christopher Bennett

VOLUME 26, NO. 151 JANUARY 2014

           One of the aspects of sound claim management is evaluating a case in a way to reduce potential exposure, if possible.  There are, of course, many ways to reduce exposure but few are as effective as using O.C.G.A. § 34-9-104.  All told, use of O.C.G.A. § 34-9-104 could reduce the exposure of indemnity benefits over the life of a non-catastrophic claim in the amount of over $75,000.00.  It can also greatly reduce the settlement value of a claim, thus significantly strengthen negotiation leverage if and when it comes time to settle a claim. With this in mind, the use of this statute should be on every claim “checklist”.  Unfortunately, it is often not implemented early as it could be.  Sometimes it is forgotten altogether.  The purpose of this article is to serve as a reminder of the importance of using O.C.G.A. § 34-9-104 and of the great impact it can have on the reduction of exposure on a claim and provide a practical guide for its implementation.

            In sum, O.C.G.A. § 34-9-104 and the accompanying Board Rule 104 are the provisions of the Georgia Workers' Compensation Act which allow an employer, with proper notice, to reduce an employee’s temporary total disability benefits to temporary partial disability benefits.  To use this statute, the employer must be able to show the employee’s authorized treating physician released the employee to return to work with restrictions and, that within 60 days of that release, the employee and the employee's attorney (if applicable) were sent notice of this release along with an accompanying Board form WC-104 indicating the employee's benefits will be reduced after 52 consecutive weeks or 78 aggregate weeks of being released to return to work with restrictions.  Of note is that, effective January 1, 2014, Board Rule 104 also requires that Form WC-104 be filed with the Board at the same time it is served on the employee and counsel for the employee.  

            Utilizing O.C.G.A. § 34-9-104 is not overly complicated and is, in fact, fairly straight forward.  However, to be safe, let’s break it down.  First, a Board form WC-104 needs to be tendered directly to the employee and to the employee’s attorney (if represented).  Second, the form WC-104 now also needs to be filed with the State Board of Workers’ Compensation at the same time it is tendered to the employee.  Third, a statement from the employee’s authorized treating physician releasing the employee to work with restrictions after examination/evaluation or treatment within the last 60 days must accompany the form WC-104.  Fourth, the physician statement should be from the designated authorized treating physician – not just from any physician authorized to treat the employee.  Fifth, the release should include all employee injuries.  It is strongly suggested that the form WC-104 and the physician’s statement be sent to the employee and counsel (if applicable) certified mail, return receipt requested in order to show proof of receipt, if needed.

            If tendered (sent) to the employee and legal representative and filed properly with the Board, the WC-104 will allow the employer to file a WC-2 (one year after the date of the release to work with restrictions) reducing benefits from the employee’s TTD rate to the applicable TPD rate.  It will also reduce the maximum weeks of indemnity benefits from the 400 week cap to a 350 week cap on indemnity benefits.

            Pretty straight forward, right?  That being said, one must be vigilant to make sure all requirements are met when using O.C.G.A. § 34-9-104.  Not adhering to the letter of this statute and Board rule may very well render the filing and tendering of the WC-104 null and void.  In fact, the Georgia Court of Appeals confirmed that the employer’s right to reduce indemnity benefits pursuant to O.C.G.A. § 34-9-104 both after 52 weeks or an aggregate 78 weeks of restricted work status is squarely conditioned upon compliance with the filing provisions of O.C.G.A. § 34-9-104 and Board Rule 104.  City of Atlanta v. Clarence Sumlin, 258 Ga. App. 643, 574 S.E.2d 827 (2002).  Therefore, it is strongly suggested that all the necessary steps are taken to ensure that benefits can later be reduced.  In sum, a bad time to discover the requirements of O.C.G.A. § 34-9-104 and Board Rule 104 were not met is a year after the form WC-104 was tendered and it should be time to reduce indemnity benefits!  Assuming the requirements of O.C.G.A. § 34-9-104 and Board Rule 104 have been met, however, the employer can reap the benefits by filing form WC-2, 52 consecutive weeks (or 78 aggregate weeks) after the date of medical release and reduce the employee’s benefits to the applicable TPD rate.

            A final thought on the utilization of O.C.G.A. 34-9-104 is to use it early and often.  It may seem like the number employees that actually return to full duty work are few and far between.  However, the percentage of employees who are permanently totally disabled is not that great either.  In fact, a majority of employees will be released with restriction at some point in their claim.  Take advantage of this fact and use O.C.G.A. § 34-9-104 in all claims when possible. 

            With this in mind, the later the form 104 is filed and tendered, the more potential savings in indemnity benefits are lost.  Simply put, there is no reason to wait several months (or years) after the employee has been released with restrictions to file the WC-104.  Always have the filing and tendering of the WC-104 on your “radar” so it can be done immediately after the employee is released to work with restrictions for the first time.  If the WC-104 is used “early” and “often” it should help you get an upper hand on your claims and ultimately reduce exposure.

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