Workers' Compensation - H. Michael Bagley and J. Benson Ward

• Jurisdiction: Georgia,United States
• Publication year: 2011
• Citation: Vol. 63 No. 1

Workers' Compensation

by H. Michael Bagley* and J. Benson Ward**

The 2010-2011 survey period¹ featured decisions of Georgia appellate courts in areas ranging from medical care to intervening accidents, with no significant legislation impacting the Workers' Compensation Act.²

I. Suspension of Benefits

S & B Engineers & Constructors Ltd. v. Bolden,³ reinforced the longstanding principle requiring proper notice to the claimant of the basis for the suspension of benefits.⁴ The claimant sustained a compensable injury to her left hand in June 2006 and began receiving temporary total disability (TTD) benefits. After her doctor reported that she could return to work with some restrictions in March 2007, the insurer unilaterally suspended indemnity benefits without notice on April 24, 2007.⁵ The claimant filed a hearing request seeking reinstatement of benefits plus penalties and attorney fees.⁶ The administrative law judge (ALJ) determined that the claimant was no longer disabled as of April 9, 2007, but awarded an additional ten days of temporary total disability benefits based upon the employer's failure to provide the ten

* Partner in the firm of Drew, Eckl & Farnham, LLP, Atlanta, Georgia. Emory University (B.A., 1977); University of Georgia School of Law (J.D., 1980). Member, State Bar of Georgia.

** Associate in the firm of Drew, Eckl & Farnham, LLP, Atlanta, Georgia. University of Georgia (B.A., summa cum laude, 2002); University of Georgia School of Law (J.D., cum laude, 2005). Member, State Bar of Georgia.

1. For analysis of Georgia workers' compensation law during the prior survey period, see H. Michael Bagley & J. Benson Ward, Workers' Compensation, Annual Survey of Georgia Law, 62 MERCER L. REV. 383 (2010).

2. O.C.G.A. tit. 34, ch. 9 (2008 & Supp. 2011).

3. 304 Ga. App. 534, 697 S.E.2d 260 (2010).

4. Id. at 539, 697 S.E.2d at 263.

5. Id. at 535, 697 S.E.2d at 261.

6. Id. Although claimant originally sought total temporary disability beginning April 24, 2007, she amended her request, as she began working another job on May 9, 2008. Id.

day notice of suspension via a WC-2 form. The ALJ also awarded a late payment penalty and attorney fees but denied the claimant's request for an assessment of civil penalties.⁷

The claimant appealed to the Appellate Division of the Workers' Compensation Board (board), which found the claimant had no actual or constructive knowledge of the suspension and thus awarded her benefits through the date of the hearing plus a late payment penalty, but no assessed attorney fees or civil penalties.⁸ Both parties appealed to the Superior Court of Chatham County, Georgia, which affirmed the appellate division's award, and the parties again filed cross appeals.⁹ The Georgia Court of Appeals noted the mandatory language in section 34-9-221(i) of the Official Code of Georgia Annotated (O.C.G.A.),¹⁰ requiring the employer to file a WC-2 with the board and provide the employee with notice.¹¹ While technical violations of the statute, such as providing less than ten days notice or stating the incorrect reason for suspension, will not prevent the employer/insurer from arguing that benefits are not due, they will subject the employer/insurer to potential liability for attorney fees.¹² The court distinguished those situations from the present case, where, as opposed to making a simple technical error in filling out the WC-2, the employer/insurer failed to file a WC-2 and provided no explanation for this failure.¹³ The court did not determine whether constructive knowledge ofthe reason for suspension would relieve the employer/insurer ofcomplying with the statute because there was no evidence in this case ofany actual or constructive notice.¹⁴

7. Id. at 536, 697 S.E.2d at 261.

8. Id. at 536-37, 697 S.E.2d at 261-62. The employer/insurer did not correct its violation of O.C.G.A § 34-9-221(i) and board Rule 221(i) until the hearing, so the appellate division determined that the ALJ committed error by limiting claimant's award to only ten days. Id. at 536, 697 S.E.2d at 261-62. In addition, the appellate division determined that, because the claimant did not have knowledge of the reason behind the suspension, she was entitled to benefits from the suspension date, April 23, 2007, until the hearing date, July 23, 2008, and a 15% penalty. Id. at 536-37, 697 S.E.2d at 262.

9. Id. at 534-35, 697 S.E.2d at 260-61.

10. O.C.G.A. § 34-9-221(i) (2008).

11. S & B Eng'rs & Constructors Ltd., 304 Ga. App. at 537, 697 S.E.2d at 262.

12. Id. at 538, 697 S.E.2d at 262-63 (quoting Reliance Elec. Co. v. Brightwell, 284 Ga.

App. 235, 238, 643 S.E.2d 742, 745 (2007)); see, e.g., Sadie G. Mays Mem. Nursing Home v. Freeman, 163 Ga. App. 557, 559-60, 292 S.E.2d 340, 342-43 (1982) (reversing both the superior court's and appellate division's rulings that the employer did not show a proper termination of benefits when it incorrectly stated its reasoning behind the termination on

the WC-2); Reliance Elec., 284 Ga. App. at 239-40, 643 S.E.2d at 745 (reversing an award

of benefits before the date of the hearing when the WC-2 form had only been filed a few days late).

13. S & B Eng'rs & Constructors Ltd., 304 Ga. App. at 538, 697 S.E.2d at 263.

14. Id. at 540, 697 S.E.2d at 264.

The court thus affirmed the award of temporary total disability benefits until the claimant found new employment on May 9, 2008, and reversed the portion of the decision awarding benefits from May 9, 2008, to the date of the hearing on July 23, 2008.¹⁵

In reviewing the claimant's cross appeal, the court of appeals held there was no error in the appellate division's factual findings and holdings regarding the compensability of her carpal tunnel syndrome, the decision not to award her additional attorney fees, and the determination that the employer/insurer did not have to produce certain documents and correspondence requested by the claimant.¹⁶

II. Reduction of Benefits

In Imerys Kaolin, Inc. v. Blackshear,¹⁷ the court of appeals addressed the procedural requirements for unilaterally reducing temporary total disability (TTD) benefits to temporary partial disability (TPD) benefits. Here, the claimant sustained a compensable injury to both of his hands in 2001 and began receiving TTD benefits. The authorized treating physician (ATP) released him to return to light-duty work on June 11,

2001, and in January 2002, the employer/insurer informed the claimant that his TTD benefits would be reduced to TPD benefits as of June 4,

2002, Instead of reducing the claimant's benefits in 2002, the employer/insurer obtained a new light-duty release from the ATP, dated December 31, 2002, and based on an August 2002 evaluation. Based on this new release, the employer/insurer notified the claimant in January

2003, that his benefits would be reduced on December 31, 2003. The employer/insurer actually reduced the claimant's benefits to TPD in January 2004, and in February 2008, it suspended TPD benefits because the 350-week cap had been reached.¹⁸ The claimant requested a hearing, arguing the employer/insurer did not provide timely notice of the unilateral reduction under O.C.G.A. § 34-9-104(a)(2),¹⁹ and, therefore, the reduction was improper.²⁰

The ALJ found that the employer/insurer had a duty to notify the claimant of the reduction within sixty days of June 11, 2001, and due to the failure to notify, "the ALJ reinstated [the claimant's] TTD benefits . . . back to the date of the unilateral reduction in January 2004."²¹

15. Id.

16. Id. at 540-41, 697 S.E.2d at 264-65.

17. 306 Ga. App. 491, 702 S.E.2d 440 (2010).

18. Id. at 491-92, 702 S.E.2d at 441-42.

19. O.C.G.A. § 34-9-104(a)(2) (2008).

20. Imerys Kaolin, Inc., 306 Ga. App. at 492, 702 S.E.2d at 442.

21. Id.

The appellate division agreed with the ALJ on all but one point, stating generally that a new release based on a subsequent examination would bring about a new sixty-day period during which a WC-104 might be filed.²² The Superior Court of Twiggs County, Georgia, reinstated all of the conclusions and findings reached by the ALJ and further held that the employer/insurer's failure to file a WC-104 within sixty days of the initial release precluded it from filing a subsequent WC-104 "unless and until there was a change in [the claimant's] status."²³

The court of appeals first addressed the superior court's additional holding requiring a change in status before filing a subsequent WC-104, reversing it as an incorrect interpretation of the statute.²⁴ The court of appeals held that the employer/insurer's WC-104 "notice [was] invalid, not because it [was] similar to a previous notice, but because it was issued more than [sixty] days from the time the restrictions were 'determined'" by an examination.²⁵ The statute and board rules require that the notice be sent within sixty days ofexamination, as opposed to within sixty days of an affirmation of a prior determination.²⁶

III. Preauthorization of Medical Care

The Georgia Court of Appeals addressed the impact and scope of the WC-205 board form this year and determined the board had exceeded its rule-making authority in a decision that has since been affirmed by the Georgia Supreme Court.²⁷ In Selective HR Solutions v. Mulligan,²⁸ the claimant initially injured her back at work in September 2005, received treatment, and returned to work in July 2006. In May 2007, she reinjured her back while at home and, after seeing several doctors, she returned to the ATP from the 2005 injury. The ATP determined that surgery was necessary and sent a WC-205 form to the employer/insurer, requesting preauthorization. More than one month later, the employer/insurer returned the form and refused to authorize the surgery without a second opinion, and, three days later, the ATP performed

29

surgery.²⁹

22. Id. at 492-93, 702 S.E.2d at 442.

23. Id. at 493, 702 S.E.2d at 442.

24. Id. at 494, 702 S.E.2d at 443.

25. Id. (internal quotation marks omitted).

26. Id. The notice came approximately five months...