April 10, 2017 BY Christopher Jackson
Don't Just Sit There: Documents That Require Fast Action
One thing that makes workers’ compensation unique relative to other fields of law is how quickly cases move.
Georgia’s workers’ compensation system is designed so that cases, and issues within those cases, move through the system quickly. This attribute contributes to the greater purpose of the entire system: to help claimant’s recover from their injuries and get back to work as safely and quickly as possible.
Oftentimes, employers, insurers, and self-insurers obtain legal representation to provide a measure of relief. Of course, it’s nice to have someone watching over a claim and counseling you through difficult issues. However, employers, insurers, and self-insurers should make a point to always remain involved in their claims. Clients who show active interest in the management of claims generally get better results. No good workers’ compensation defense attorney is ever going to tell their clients to relax and allow them to handle the claim without assistance. This article discusses some ways that employers, insurers, and self-insurers can avoid creating unnecessary exposure and squandering opportunities to reduce exposure.
Once an employer, insurer, or self-insurer obtains representation, the law treats the attorney and his or her client, for most intents and purposes, to be one entity.
One consequence of this concept is that once a claimant or a provider serves a document on an employer, insurer, or self-insurer, the document has been legally served on the attorney, and vice versa. In some circumstances, this is of no practical effect for employers, insurers, and self-insurers, because the State Board of Workers’ Compensation’s rules require certain documents to be served upon the attorney, and in others it requires service upon the attorney and his or her client. For instance, where a claimant files a motion requiring a rule from an Administrative Law Judge, the motion must be sent to the attorney. Motions, of course, are time-sensitive because objections must be filed within a certain time period, but the attorney will have it in his or her possession as a requirement of proper service. Sometimes, however, provision of certain time-sensitive documents to an employer, insurer, or self-insurer is all that is required. In those circumstances, failure to act quickly can create unnecessary costs for employers and insurers.
Obviously, one major facet of workers’ compensation cases is payment of bills stemming from medically necessary treatment, and Georgia’s Workers’ Compensation Act contemplates payment of bills in a timely fashion. Under Rule 203, employees or medical providers must submit medical bills to employers or their insurance carrier within one year of the date of service. Once those bills are received by the defense attorney, insurer, or employer, a clock starts running. The Employer/Insurer is required to pay the bill in compliance with the workers’ compensation fee schedule within 30 days of receipt of the bill or it must request further documentation of the charges within 30 days. Failure to act within the prescribed period can create significant and unnecessary exposure for the Employer/Insurer. When a bill is paid 30 to 60 days late, a penalty equal to 10% of the original amount due is added. When a bill is paid 60 to 90 days late, a penalty equal to 20% of the amount due is added. When a bill is paid more than 90 days late, in addition to the 20% penalty, the Employer/Insurer must pay interest in the combined total of the principal and the 20% penalty in an amount equal to 12% per annum from the 91st day after the date the charges were due until the time full payment is made. Insurance adjustors should remain diligent about checking their mail, email, and fax machines for medical bills on a regular basis to avoid using valuable time. When represented by counsel, they should send bills to their attorney immediately upon receipt. Perhaps most importantly, they should instruct employers to forward any medical bills they receive immediately. Adjustors should always keep in mind that employers generally have much less experience with the workers’ compensation system than they do, and sometimes people react to receiving something seemingly insignificant by doing nothing about it.
Similar rules apply to reimbursement of mileage costs. Claimants must submit itemized mileage costs to their employer or its insurance carrier within one year of incurring the cost. The penalties for late reimbursement are the same as for late payment of medical costs. However, reimbursement is due only 15 days after the Employer/Insurer receives the mileage log.
Sometimes, medical providers would like assurance that they will be paid for a service before they provide it.
In those instances, medical providers fill out a WC-205 and send them to the insurer or its attorney for pre-approval of the treatment. The insurer has only five business days to respond by completing the WC-205 and indicating that the treatment is approved or not approved. Thankfully, the rules do not allow service of a WC-205 upon an employer to start the clock. Still, adjustors should appreciate just how quickly this legal mechanism operates, because if the defense fails to respond to the WC-205 within five business days of receipt, the requested treatment is deemed pre-approved. Furthermore, Administrative Law Judges have the authority to impose civil penalties or attorney fees where the defense fails to respond to the request in time. To avoid these penalties, adjustors should stay in close contact with their attorneys and provide WC-205s to them immediately. Sometimes, making a determination as to whether a treatment is medically necessary is not as simple as reading the WC-205 and saying “yes” or “no.” Attorneys will occasionally need to consult their colleagues or medical experts to make the most informed decision. Therefore, no time should be wasted.
In many cases, once medical treatment has tapered and the claimant reaches maximum medical improvement, the authorized treating physician will provide a permanent partial disability rating in a medical note. These notes provide insurers and their attorneys with the information they need to determine what permanent partial disability benefits the claimant should receive. Payment of these benefits is not required until the claimant is no longer entitled to temporary total or temporary partial disability benefits. Once a claimant is no longer entitled to TTD or TPD benefits and the authorized treating physician provides a PPD rating in a medical note to the employer, insurer, self-insurer, or attorney, the defense has 21 days from the date of receipt of the note to commence PPD benefits payments. If the payment is late, the Employer/Insurer must pay a 15% penalty in addition to the principal owed. Again, rapid open communications among the employer, insurance carrier, and defense attorney are key to avoiding exposure to such penalties. Employers need to know that medical records they receive often carry legal significance and should not simply be placed into the claimant’s personnel file without being sent to the insurance carrier and defense attorney as soon as possible.
In many cases, a claimant’s authorized treating physician will take them out of work but later release them to light-duty restrictions which the employer is unable to accommodate. Where the Employer/Insurer is unable to return the claimant to work within his or her restrictions, the claimant will continue to receive TTD benefits, but the Employer/Insurer can still reduce its exposure going forward by filing a WC-104 and attaching the medical note releasing the claimant to light-duty work. Once a claimant has spent a requisite period of time out of work, but on light-duty restrictions, the Employer/Insurer may reduce weekly benefit payments as well as the maximum period the claimant is entitled to those payments. The crucial time element in such a case is that the WC-104 must be filed within 60 days of the appointment when the physician placed the claimant on light-duty restrictions. The time when the Employer/Insurer received the medical note is irrelevant. In order to avoid squandering an opportunity to reduce exposure, employers, insurers, and attorney must have a rapid and open exchange of all records which come into their possession. As a practical matter, medical providers sometimes respond to requests for records at different times, so one leg of the defense team may be privy to certain information which has not yet reached the other legs. Employers, insurers, and attorneys should work together to close the information gap as quickly as possible.
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