Workers’ Compensation is a very form-driven area of the law. Almost every action the Employer/Insurer takes is required to be documented via some board form.
Workers’ Compensation is a very form-driven area of the law. Almost every action the Employer/Insurer takes is required to be documented via some board form. Thus, it is very important to ensure that all board forms are correctly and timely filed. This is especially true since recent cases indicate a trend toward strict technical compliance with the Board rules regarding form filings and notice given to employees.
Employers, adjusters, and attorneys file numerous board forms every day. Thus, many become so used to filing forms by rote (or having the forms filed by assistants who have not been specifically trained on board form requirements) that they forget many of the details which are now being viewed so strictly by the Board and higher courts. Adjusters and, often, attorneys, become so used to the mundane filing of forms that they often forget or disregard the simple details regarding proper filing, including even forgetting to provide the Claimant and his/her attorney with a copy of the form and any attachments. They forget that some forms require the copying of both the Claimant and his/her attorney, instead sending a copy only to the Claimant or only to the attorney. This simple failure can result in some harsh penalties if noticed by the Claimant’s attorney. For instance, the WC-104 form requires that a copy be sent not only to Claimant’s attorney, but also the Claimant. It also requires that a copy of the light duty release be attached to the board’s copy, as well as the copies going to the Claimant and the Claimant’s attorney. If proper notice is not given, the WC-104 may be invalidated, resulting in the Employer/Insurer having to start the process all over again. Paying attention to the details, however, can prevent situations like this.
Adjusters, employers, and attorneys should review the filing requirements of Board Rule 61 at least once per year, if not every time they file a board form. The forms the Board uses often are very helpful, listing on the face of the form who should be copied and what attachments are required. Before filing any form, review the instructions on the Board form itself. If the filing instructions are unclear or not listed, review Board Rule 61. Board forms are simple to fill out and it is easy to understand who should be copied and what attachments are required. All you have to do is review the forms, occasionally review the applicable Board rule, and follow the instructions. You also must remember to file the appropriate form in a timely fashion.
Many board forms were changed by the Board in the last year. Thus, always ensure that you use the most up-to-date forms. This is especially important with the Board’s new ICMS program. The Board also is now requiring that the Employer/Insurer use the SBWC identification number (available on the State Board’s web-site) on all forms, as well as the ICMS claim number once one has been assigned by the Board. The Board also recently noted that it is a violation of Board Rule 61 to change the standard board forms, even to include more room for additional information. The Board has indicated that it will begin returning forms that are not correctly or completely filled out. You should note that if the form is returned by the State Board for corrections, it is as though the form was never filed in the first place. Thus, it is important to re-file the correctly completed form.
Several commonly used forms that are often incorrectly or incompletely filed by employers, insurers, and attorneys are listed below:
A WC-1 is required in every case. The Employer is required to file a WC-1(a) immediately upon learning of an accident resulting in injury and send it to the insurer. Remember to list the county of injury on the WC-1 since judges are assigned based on the county of injury if the claim eventually goes to a hearing.
Upon receipt of the WC-1 from the employer, the insurer is required to date-stamp the WC-1, complete section “B”, “C”, or the new section “D”, and file it with the State Board, sending copies to the Claimant and Claimant’s counsel of record. Section “B” indicates that benefits are being commenced. Section “C” indicates that Benefits are being denied and provides the basis for the denial. The new Section “D” indicates that the claim is a medical-only injury. It is imperative that when the WC-1 is filed with the Board, a copy, including page two of the form, which sets forth Claimant’s rights, is sent to the Claimant and his attorney, if applicable.
A WC-2 form is required to be filed with the Board, with copies provided to Claimant, and Claimant’s attorney every time benefits are commenced, suspended, or converted. Because the action being taken affects Claimant’s entitlement to benefits, notice is required. Thus, it is very important to pay attention to the time requirements. For instance, in some circumstances, the Claimant must be given a certain amount of advance notice before his/her benefits are suspended. For example, if the employee has been released to return to work without restrictions, but has not done so, before suspending his benefits, a form WC-2 must be filed with the Board advising the date (at least ten days later) that Claimant’s benefits will be suspended. A copy of the treating physicians report releasing the Claimant to regular work also must be attached. Further, copies of the WC-2 with supporting attachments must be sent to both Claimant and counsel of record.
If TTD benefits are being converted to TPD pursuant to a previously filed WC-104, a copy of the previously filed WC-104 must be attached to the WC-2 that is filed with the Board, with copies of the WC-2 and all attachments sent to Claimant and counsel of record. Please note that, as a general rule, if the right to income or medical treatment is affected by the filing, Claimant always must receive a copy of the form affecting his benefits, as well as all attachments, even if he/she is represented by an attorney. The attorney also must receive copies of any board form that affects his client’s rights.
Similar to the WC-2, Claimant and counsel of record must receive a copy of the WC-3, along with any attachments, since the form affects entitlement to medical benefits, indemnity benefits, or both. In addition to copying the Claimant and his attorney, however, it is very important to copy any other party who might have a financial interest that is affected by the controvert. This would include any medical providers who may be providing treatment that has been or will be denied as a result of the WC-3. Often, the Claimant and his attorney receive copies of the WC-3, but not the providers, who also will be affected by the denial. If there is a child support lien in place that might be affected by a controvert of continuing indemnity benefits, the child support agency or other lien holder also should receive a copy of the WC-3.
There are several board rules that may effect the timing of the WC-3 filing. It is important to pay close attention to those filing deadlines, especially the deadlines for filing the initial controvert of the claim.
As noted above, the WC-104 is often paired with a WC-2 suspending/converting benefits. However, in order to reach the point of suspending benefits on the basis of a previously filed WC-104, it is imperative that the WC-104 be properly and timely filed. Recent case law has outlined the problems facing the Employer/Insurer as a result of non-compliance with the technical requirements set forth by the State Board. The WC-104 form must have attached the light duty release from the authorized treating physician. It must be filed, with a copy of the WC-104 and light duty release sent to the Claimant and his attorney, within sixty (60) days of the date of the light duty release. The WC-104 form also must indicate the TTD rate that currently is being paid to the employee, along with the benefit rate to which the Claimant will be entitled upon the expiration of the statutory time period under O.C.G.A. §34-9-104. If you follow the instructions listed on the WC-104 form and complete all of the information blanks with the correct information, you should be able to ensure compliance with the Board rule, thereby allowing conversion of benefits once the statutory period has passed.
Many adjusters often simply forget to file the WC-4, or, because the claim has been denied, believe that the WC-4 form is not necessary. However, Board Rule 61 sets forth very specific guidelines regarding the filing requirements for this board form. One of those requirements is that the WC-4 form must be filed within 180 days of the first disability date, regardless of whether the claim is accepted or denied. It also requires the filing of a WC-4 within 90 days of the date that an open claim is taken over by another third party administrator. For other specific filing requirements, see Board Rule 61 (b)(5).
A form WC-6 must be completed and filed with the Board, Claimant, and his/her attorney, whenever the average weekly wage results in a TTD or TPD rate of less than the maximum for the injury date. The WC-6 also must be provided upon written request for the Claimant or his counsel of record.
The WC-240 form, offering a light duty job to an employee who has been released to light duty work, also has many requirements regarding attachments and filing deadlines. If an employee is not working, but has been released to light duty by the authorized treating physician, the Employer/Insurer may attempt to return the injured employee to work by offering a suitable light duty job via a form WC-240. The WC-240 form offering the job must be provided to the injured employee and counsel of record at least ten (10) days prior to the date on which the employee is supposed to work. Moreover, the form should have attached a written description of the light duty job being offered to the employee that has been specifically approved by the authorized treating physician after an examination within the last sixty (60) days. Further, the WC-240 should be completely filled out, with no blanks remaining, including rate of pay, hours worked, and the essential duties of the position.
There are many other board forms which may be used to alter Claimant’s entitlement to medical or indemnity benefits and which may be impacted by faulty or incomplete filing. For a complete listing of board forms and their filing requirements see Board Rule 61, as well as the associated board rules. Take a few minutes to examine the form for completeness, accuracy, and any required attachments before filing it. If necessary, check the board rules. Doing so could save you or your client significant time, money, and frustration.