Both the Workers’ Compensation Act and Georgia State Board of Workers’ Compensation Board Rules prescribe specific ways in which an employer/insurer can unilaterally suspend a claimant’s benefits…
Both the Workers’ Compensation Act and Georgia State Board of Workers’ Compensation Board Rules prescribe specific ways in which an employer/insurer can unilaterally suspend a claimant’s benefits. Some of the more common pitfalls, such as failing to provide ten days’ notice prior to suspension, can easily be avoided to prevent additional exposure. The first thing an employer/insurer needs when seeking to suspend a claimant’s benefits unilaterally is a legitimate reason to do so, and the most common reason is a change in condition.
Change in Condition
When an employer/insurer seeks to suspend a claimant’s benefits based on a change in condition for the better, the initial burden of proving that a “change in the wage-earning capacity, physical condition, or status of an employee . . .” has occurred is on the employer/insurer. O.C.G.A. § 34-9-104. The employer/insurer can satisfy this burden by showing that a claimant’s physical condition has changed for the better. An employer/insurer will meet its burden that a claimant has undergone a change in condition for the better when an authorized treating physician (ATP) has released the claimant to regular duty work without restrictions. In the alternative, an employer/insurer can meet this burden by showing that a claimant’s ongoing medical complications are not causally related to the work injury. Once the burden has been fulfilled, you can move on to the next step in the process to suspend benefits: filing a WC-2.
How to Suspend Benefits Based on a Change in Condition
When an employer/insurer seeks to suspend a claimant’s benefits based on a change in condition, it must file a Form WC-2 notice of payment or suspension of benefits with the State Board. The WC-2 notice must be mailed to the claimant, e-mailed to the claimant’s attorney, and mailed to the Board. Board Rule 221(i)(1) also requires that suspension of benefits at any time “based on the ground of change in condition requires advance notice of 10 days unless the employee has actually returned to work.” If the employee has returned to work, the Board does not require the ten days’ advance notice. The Rule goes on to say that the date of filing with the Board “shall be considered the date of notice.” Failing to provide the required 10 days’ notice is one of the most common pitfalls employer’s/insurer’s run into when suspending a Claimant’s income benefits.
When an employer/insurer is suspending a claimant’s benefits based on a release to return to regular duty work without restrictions, a copy of the medical report supporting the contention by the ATP must be attached to the WC-2 . Pursuant to Board Rule 221(i)(4)(a), the ATP must have examined the Claimant within the sixty days before the filing. The sixty day requirement is another hiccup commonly overlooked when suspending benefits. If a claimant has not been seen by an ATP during the preceding sixty days, we recommend sending the claimant back to the ATP, obtaining another regular duty work release, and then filing the necessary forms. Importantly, when filing via EDI, the employer/insurer must strictly comply with Board Rule 221(i)(4)(a), and mail the Form WC-2 along with the supporting medical report to the Board.
Although the Board Rule states that a claimant must be given ten days’ notice before suspending benefits, Board Rule 221 (i)(4)(a) states that when service is performed by regular mail to the employee, “three additional days shall be added to the prescribed notice period.” At this time, adjusters cannot access ICMS directly, and must file WC-2 forms via EDI, and then mail the forms to the employee and the Board. In order to avoid non-compliance with the ten day notice requirement, it is prudent to always mail the WC-2 to the employee and to the Board at least thirteen or fourteen days before actually suspending benefits.
To demonstrate how this process should work, say for instance that a claimant was seen by the ATP on January 1, 2016, and the medical report indicates that the claimant was released to regular duty work without restrictions. Now, suppose the employer/insurer is preparing to mail out a Form WC-2 Notice of Payment or Suspension of Benefits along with the medical report from the ATP on February 1, 2016. To ensure compliance with the Board Rules, the employer/insurer should indicate on Section C of the Form WC-2 that the claimant’s benefits will be suspended on February 15, 2016, fourteen days after the date of mailing. By allowing fourteen days rather than ten, the employer/insurer is assured that the claimant, his/her attorney, and the Board will all have notice of the suspension at least ten days before the suspension is to actually occur.
Strict Compliance with the 10 Day Notice Requirement and the Potential Implications of Failing to Comply
The Georgia State Board of Workers’ Compensation Board Rules are meant to be strictly complied with, and failure to do so when suspending a claimant’s benefits may result in penalties. The WC-2 process is significant, and if a court finds that a claimant’s benefits were wrongfully suspended, an Administrative Law Judge (ALJ) may find the employer/insurer liable for Temporary Total Disability benefits (TTD), attorney’s fees, and sometimes even civil penalties.
Suspending too Early
In Reliance Elec. Co. v. Brightwell, the Georgia Court of Appeals found that an employer is “not allowed to suspend benefits on the date it selected for suspension in the WC-2 but may suspend benefits ten days after the date on which the WC-2 was filed.” In Brightwell, the Insurer filed a WC-2 on August 4, but indicated that the Claimant’s benefits would be suspended on August 10, four days short of the ten day advance notice requirement explicitly stated in Board Rule 221(i). Because the Employer/Insurer wrongfully suspended the Claimant’s benefits four days early, they were required to pay an additional four days of indemnity benefits.
Not Filing a WC-2
As illustrated in Brightwell, simply suspending a Claimant’s benefits too early may be easily remedied. However, failing to file a WC-2 completely means trouble. In another Georgia case, Bolden v. S&B Engineers, the Court of Appeals required the Employer/Insurer to recommence TTD benefits all the way up until the Claimant began working for another employer, despite the Claimant’s regular duty work release without restrictions. In Bolden, the Court found that the Employer/Insurer suspended the Claimant’s benefits on the basis that the Claimant was no longer disabled. In fact, the Court agreed with the Employer/Insurer that the Claimant was no longer disabled on the date her benefits were suspended. However, the Employer/Insurer failed to file a Form WC-2 with the Board or send a copy of the form to the Claimant to give her the required notice before suspending her benefits.
The Appellate Division in this case stated that: “[w]hile we agree that the employee’s work-related injuries had resolved at the time her benefits were suspended, we also find that the Employer/Insurer’s failure to comply with the clear requirements of O.C.G.A. § 34-9-221(i) and Board Rule 221(i) was at no time corrected until the date of the hearing.” The Court said that there was no evidence that the claimant had actual or constructive knowledge of the reason for the suspension, and therefore, the claimant was entitled to income benefits from the date of suspension until the date she began working for a new employer (13 months). Not only did the Employer/Insurer have to pay the Claimant the income benefits, but they were ordered to pay a 15% penalty for late payment.
Filing a WC-2 with Incorrect Information
In the case of Stanley Mitchell v. DeKalb County School District, the Employer/Insurer filed a WC-2 to suspend the Claimant’s benefits, however, the WC-2 was not correctly filled out. The form listed “new accident” as the reason the Claimant’s benefits were suspended. At the Hearing, however, the Employer/Insurer argued that the suspension was based on a work status report releasing the Claimant to regular duty work without restrictions. The ALJ found that, although the Claimant was released to work the same job he had before the accident, he was still on work restrictions. Moreover, the ALJ found that the Claimant was not afforded the ten days’ notice that his benefits were being suspended that the Board Rules require. Due to errors on the WC-2, not only was the Claimant awarded indemnity benefits from the date of the wrongful suspension and continuing, but the Judge awarded attorney’s fees as well.
The takeaway from the case law is clear. The WC-2 process for suspending a claimant’s benefits must be strictly followed or the employer/insurer may owe additional TTD benefits, late penalties, and sometimes attorney’s fees. The good news is that the procedure is simple, and as long as the steps illustrated above are followed, employers and insurers can rest easy.