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Last Reviewed / Modified On 15 Mar 2018.

GEORGIA WORKERS' COMPENSATION CLAIM HANDLING GUIDELINES

Contents [hide]

INTRODUCTION

Workers’ Compensation claims in Georgia are governed under and by the Workers’ Compensation Act, which can be found at Title 34, Chapter 9 of the Georgia Code . Claims are handled administratively by the State Board of Workers’ Compensation which has both trial and appellate divisions to resolve disputes surrounding the entitlement to benefits under the Workers’ Compensation Act.

Naturally, the statutes and decisions from the State Board are interpreted and reviewed by the Georgia Court of Appeals and Supreme Court. The courts have also carved out exceptions and clarified issues which are not fully addressed in the statutes.

DEFINITIONS

Employer

The term “employer” includes the State of Georgia and all departments, instrumentalities, and authorities thereof; each county within the state, including its school district; each independent public school district; any municipal corporation within the state and any political division thereof; any individual, firm, association, or public or private corporation engaged in any business, except as otherwise provided in the Workers’ Compensation Act; any electric membership corporation or other cooperative corporation engaged in rural electrification, including electric refrigeration cooperatives; any telephone cooperative or other cooperative or nonprofit corporation engaged in furnishing telephone service; the legal representative of a deceased employer using the service of another for pay; and any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits. If the employer is insured, this term will include his insurer. O.C.G.A. § 34-9-1(3).

Statutory Employer

Even if there is no actual employment relationship between them, a principal, intermediate, or subcontractor will be liable for compensation to any employee injured while in the employ of any of his subcontractors to the same extent as the immediate employer. O.C.G.A. § 34-9-8(a). However, the statutory employer provision applies only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management. O.C.G.A. § 34-9-8(d).

In those cases, the injured employee of the subcontractor would be the statutory employee of the general contractor, intermediate contractor or higher level subcontractor in the same hierarchy. Wright Assoc., Inc. v. Rieder, 248 Ga. 496, 277 S.E.2d 41 (1981).

The purpose of the statutory employment provision in the Workers’ Compensation Act is to dissuade contractors from subletting work to irresponsible and uninsured subcontractors.

Any principal/general contractor, intermediate or subcontractor who pays compensation as a statutory employer may recover the amount paid from any person who would have been liable to pay compensation to the injured employee or from any intermediate contractor. O.C.G.A. § 34-9-8(b).

Employee

It has long been established in Georgia that the existence of an employment relationship between the injured worker and the individual or entity from which he seeks workers’ compensation benefits is essential to the claimant’s recovery of any workers’ compensation benefits. When any one of the following five circumstances exists, an individual will be said to be an employee of the person or company from whom he seeks workers’ compensation benefits:

1) There the individual is actually an employee of the alleged employer. O.C.G.A. § 34-9-1(2).

2) Where there is statutory employee status. O.C.G.A. § 34-9-8.

3) Where there is employee status by virtue of “employment by estoppel. O.C.G.A. § 34-9-124(b); Home v. Exum, 204 Ga. App. 337, 419 S.E.2d 147 (1992).

4) Where the employee is the borrowed servant under the borrowed servant doctrine. Bennett v. Browning, 196 Ga. App. 158, 395 S.E.2d 333 (1990).

5) Where the injured worker is statutorily included within the definition of the term employee. O.C.G.A. § 34-9-1(2).

An undocumented alien is not excluded from the definition of employee under the Workers’ Compensation Act as a matter of public policy. Continental PET Technologies, Inc. v. Palacias, 269 Ga. App. 561, 604 S.E.2d 627 (2004).

Borrowed Employee

While one is not ordinarily the servant of two masters, the Georgia courts have recognized that, under certain circumstances, an individual may be the servant of two masters. For example, on occasion, one company may loan one of its employees to another company, and if the employee has an on-the-job injury while working for the second company, then the second employer is responsible. In those cases, the second company will be deemed to be the employer of the loaned employee for that occasion even though the employee remains in the general employment of the first employer. For the borrowed employee doctrine to apply, all three of the following must be met:

1) The second employer must have complete control of the individual for the particular occasion.

2) The first employer must retain no control over the employee for the particular occasion, or for the occasion.

3) The second employer must have the exclusive right to discharge the employee, to put another in his place, or to put him to some other work. Fontaine v. Home Depot, 250 Ga. App. 123, 550 S.E.2d 691 (2001).

Independent Contractor

Where an injured individual’s relationship with the defendant is a mere independent contractor relationship, rather than an employment one, there is ordinarily no right on the individual’s part to recover workers’ compensation benefits from the defendant. O.C.G.A. § 34-9-2(d). A person qualifies as an independent contractor and not an employee if the person meets all of the following criteria:

1) Is a party to a contract, written or implied, which intends to create an independent contractor relationship;

2) Has the right to exercise control over the time, manner, and method of the work to be performed; and

3) Is paid on a set price per job or a per unit basis, rather than on a salary or hourly basis.

A person who does not meet all of the above listed criteria will be considered an employee unless determined by an administrative law judge to be an independent contractor based upon other facts specific to the case. O.C.G.A. § 34-9-2(e).

EXCLUSIVE REMEDY

General Rule

The Georgia Workers’ Compensation Act provides that certain individuals, including an employee’s employer and coworkers, are all immune from tort liability for any injury or disease on the employee’s part for which the Workers’ Compensation Act is applicable. In other words, the Workers’ Compensation Act is the exclusive remedy available to employees who sustain work-related injuries. O.C.G.A. § 34-9-11.

No Exception Recognized

The Georgia courts have consistently rejected efforts to circumvent or carve out exceptions to the exclusive remedy provision of the Act. However, the courts have set forth certain limited circumstances under which an injured employee can seek recovery in tort against the employer outside the workers’ compensation system. They are: a purely personal and intentional tort; for the employer’s failure to provide workers’ compensation insurance; for fraud in the procurement of an award or settlement; for property damage; for negligent inspection by the insurer acting in a role other than that as workers’ compensation insurer; for professional negligence; and sometimes in a dual persona situation.

The enumerated exceptions to the exclusive remedy provision of the Act are few and are very narrowly interpreted by the courts. If the tort claim does not fit squarely within one of those exceptions, the suit will be barred by the exclusive remedy provision of the Workers’ Compensation Act.

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

The Georgia State Board of Workers’ Compensation has jurisdiction to adjudicate a claim for occupational disease or injury if it has been timely filed with the Board. Georgia allows workers’ compensation jurisdiction for accidents occurring within Georgia. If the injury occurs in Georgia, there is Georgia workers’ compensation jurisdiction for the injury. Sargent Indus., Inc. v. Delta Air Lines, Inc., 251 Ga. 91, 303 S.E.2d 108 (1983), Jurisdiction exists in Georgia even if the injured employee was not a Georgia resident and even if the contract of employment was not made in Georgia as long as nothing in the law prohibits jurisdiction because of a contract in another state or because of residence in another state. Security Ins. Group v. Plank, 133 Ga. App. 815, 212 S.E.2d 471 (1975).

Extraterritorial Jurisdiction

Georgia has, under certain circumstances, assumed workers’ compensation jurisdiction for injuries which have occurred outside Georgia. Georgia has utilized any one of the following four different bases to find Georgia workers’ compensation jurisdiction for out-of-state work injuries:

1) Jurisdiction under O.C.G.A. § 34-9-242 which defines specifically when one can get compensation for injuries which occur outside of Georgia: (i) if there exists a contract of employment made within Georgia; (ii) if the employer’s place of business or the residence of the employee is in Georgia; and (iii) unless the contract was expressly for service outside of Georgia.

2) Where there was a Georgia contract of employment that included an assumption of jurisdiction pursuant to O.C.G.A. § 34-9-7.

3) Where Georgia was the principal location of the employment.

Time Limitation

Notice of Injury

O.C.G.A. § 34-9-80 provides that an injured employee must notify his employer (or the employer’s agent, representative, foreman or the employee’s own supervisor) of an injury immediately on the occurrence of any accident or as soon thereafter as practicable, but in no event later than 30 days after the occurrence of an accident or within 30 days after death resulting from the accident. The thirty day period of time within which the employee must give notice does not begin to run until the day which the employee first had reason to realize he had been injured. Commercial Union Ins. Co. v. Verner, 150 Ga. App. 13, 256 S.E.2d 603 (1979).

Statute of Limitations

Two different types of limitations periods exist under the Georgia Workers’ Compensation Act: a notice limitation period (which we discussed in 4.3.1 above), and various claims limitation periods. The claims limitations periods are those by which an injured employee is required to file a written workers’ compensation claim with the State Board of Workers’ Compensation within a certain period of time.

All Issues Claims for Injuries

O.C.G.A. § 34-9-82(a) states the right to compensation will be barred unless a claim is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury, the claim may be filed within one year after the date of the last remedial treatment furnished by the employer, or within two years after the date of the last payment of weekly benefits.

Death Claims

O.C.G.A. § 34-9-82(b) provides that the right to compensation for death will be barred unless a claim therefor is filed within one year after the death of the employee.

Change of Condition Claims

The term "change in condition" means a change in the wage-earning capacity, physical condition, or status of an employee or other beneficiary covered by the Act, which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee or other beneficiary was last established by award or otherwise. O.C.G.A. § 34-9-104(a). In order to apply for a change in condition, at the time of application not more than two years can have elapsed since the date the last payment of income benefits (TTD or TPD) was actually made; provided, however, any party may file for PPD benefits not more than four years from the date the last payment of income benefits (TTD or TPD) was actually made.

Occupational Disease Claims

The limitations period for occupational disease claims is found at O.C.G.A. § 34-9-281(b)(2) which states, the claim for disablement is filed within one year after the date the employee knew or, in the exercise of reasonable diligence, should have known of the disablement and its relationship to the employment; but in no event will the claim for disablement be filed in excess of seven years after the last injurious exposure to the hazard of such disease in such employment; provided, however, that an employee with asbestosis or mesothelioma related to exposure to asbestos will have one year from the date of first disablement after diagnosis of such disease to file a claim for disablement. In cases of death where the cause of action was not barred during the employee's life, the claim must be filed within one year of the date of death.

Extension of Limitation Period

1) There are certain limited circumstances under which the running of the application statute of limitations will be tolled:

2) Mental incompetency of the injured worker;

3) Minor dependents (but not for a minor who sustains a work injury); and

4) Mistake of law.

COMPENSABILITY

General Rule

The Georgia Workers’ Compensation Act provides compensation for injuries by accident arising out of and in the course of employment. O.C.G.A. § 34-9-1(4).

“Arising out of” means that there must be some causal connection between the conditions under which the employee worked and the injury. In other words, the employee must have been doing something for work or as part of his job duties.

“In the course of,” which is the more broad term, generally means that the injury occurred during the time period of employment at a place where the employee reasonably may be in the performance of his employment.

“Injury”Defined

The term “injury” means only injury by accident arising out of and in the course of the employment. The employee bears the burden of proof that he had an accidental injury.

Types of Injuries

Aggravation of a Preexisting Condition

The fact that an employee has a pre-existing condition does not disqualify the employee from collecting workers’ compensation benefits if the employment aggravated or accelerated the disability for which workers’ compensation benefits are sought. The employee can continue to collect benefits as long as the aggravation of the pre-existing condition continues to be the sole or major cause of the disability.

There need not be a specific incident for the employment aggravation to be compensable. The employment need not be the cause of the disability as long as it is a contributing cause. Once the aggravation of a pre-existing condition ends, the employer and insurer are no longer responsible for that condition. O.C.G.A. § 34-9-1(4)

Alcoholism or Drug Addictions

Generally a claimant cannot recover disability or medical benefits for alcoholism, even if a compensable physical injury led to the alcoholism. The same rule applies to drug addiction unless the claimant became addicted to medications prescribed by the authorized treating physician. O.C.G.A. § 34-9-1(4).

Heart and Stroke Injuries

The Workers’ Compensation Act requires “medical evidence” to support a claim for stroke or heart attack. Heart pain is generally insufficient to support a claim for workers’ compensation benefits. The claimant needs to show medical evidence of a heart attack.O.C.G.A. § 34-9-1(4).

Like all occupational injuries, a heart attack or stroke must arise out of and in the course of employment. However, a heart attack or stroke which occurs after working hours, off working premises and when one is not engaged in anything incidental to employment can still be compensable if the employee can prove that work activities were a contributing proximate cause to the after working hours heart attack or stroke.

The employee still must prove that the heart attack or stroke arose out of the employment by showing with medical evidence a causal connection between the conditions under which the employee worked and the injury.

Psychological Injury

In order for a psychological injury to be compensable in Georgia, it must result naturally from some discernible physical occurrence. There is no claim in Georgia for a psychic injury alone without the physical occurrence.

Hernia Injuries

The Act requires a higher burden for hernia injury than for other occupational injuries. O.C.G.A. § 34-9-266.

The employee must prove the hernia arose out of and in the course of the employment plus all of the following five factors: (1) there was a specific injury resulting in hernia; (2) the hernia appeared suddenly; (3) the hernia was accompanied by pain; (4) the hernia immediately followed an accident; and (5) the hernia did not exist prior to the accident for which compensation is claimed.

Injury to Hearing

Claims for hearing loss are compensable if the hearing loss arises out of and in the course of employment.

There are two types of hearing loss: (1) traumatic hearing loss occurs when hearing loss is due to a physical injury (i.e. a blow to the head); (2) occupational hearing loss occurs due to occupational exposure to harmful noise.

In traumatic hearing loss cases, general workers’ compensation rules for occupational injuries apply.

In occupational hearing loss cases, the claim is handled under O.C.G.A. § 34-9-264 which contains tables for calculating permanent partial disability benefits.

Death

Claims for accidental death are addressed specifically under O.C.G.A. § 34-9-265. Accidental death is compensable if it arose out of and in the course of the employment

There are essentially three types of benefits which may be recovered under the Georgia Workers’ Compensation Act as a consequence of a deceased employee’s compensable death: (1) the reasonable expenses of the employee’s last sickness; (2) burial expenses; and (3) weekly dependency benefits.

EXCLUSIONS AND DEFENSES

Course of Employment

In order for a claim to be compensable in Georgia it must both occur “in the course of” and “arise out of” the employee’s employment. While sometimes the two concepts are confused, or often combined, it is important to remember that they are two distinct concepts. Both are independent and neither alone is sufficient for an injury to be compensable. New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682 (1923). “Scope of employment is irrelevant in Georgia for purposes of workers’ compensation. (“Arising out of” will be addressed in section“Injury”Defined below.)

“In the course of” is usually the easier of the two concepts to understand. An injury occurs in the course of one’s employment when it occurs during the time period of the employment, at a place where the employee reasonably may be performing work and while he is fulfilling his work duties or engaged in something incidental to them. U.S. Fuduc. & Guar. Co. v. Waymick, 42 Ga. App. 177 (1930). In short, if you are an employee, you are at work and you are injured while working, the “in the course of” part of the equation will almost always be satisfied.

Generally, an injury which occurs during an employee’s scheduled rest break does not occur in the course of employment and is therefore not compensable. Ocean Acc. & Guar. Corp. v. Farr, 180 Ga. 266 (1944).

Traveling and Ingress/Egress

The general rule in Georgia is that an injury which occurs while an employee is on his or her way to or way home from work is not compensable. Wilcox v. Shepherd Lumber Corp., 80 Ga. App. 71 (1949). There are several exceptions to that general rule.

If an employer provides an employee with transportation as an incident of employment, an injury which occurs during their travel is generally compensable, regardless of whether the employee is paid during the travel. Indemnity Ins. Co. of N. Am. v. Bolen, 106 Ga. App. 684 (1962); Hammer v. White, 80 Ga. App. 648 (1949). If the employer provides transportation as a mere favor, an injury which occurs during the travel is not compensable. American Mut. Liab. Ins. Co. v. Curry, 187 Ga. 342 (1938). Other exceptions to the general rule include on-call employees who are reimbursed for transportation; trips that are beneficial to the employer; and traveling from one employment premise to another during work hours. Lewis Wood Preserving Co. v. James, 110 Ga. App. 689 (1964); Lockhart v. Liberty Mut. Ins. Co., 141 Ga. App. 476 (1977); West Point Pepperell, Inc. v. McEntire, 150 Ga. App. 728 (1979).

A further exception to the general rule provides for compensability of injuries which occur in the time immediately preceding one arriving at work, or departing work, if the injury occurs on the premises owned, operated or controlled by the employer. Mobley v. Durham Iron Co., 83 Ga. App. 690 (1951). Injuries which occur up to 30 minutes before or after the shift have been found to be compensable. United States Cas. Co. v. Russell, 98 Ga. App. 181 (1958). The injury must be on premises which are owned, directed, controlled or maintained by the employer in order for the injury to be compensable. Tate v. Bruno’s Inc./Food Max, 200 Ga. App. 395 (1991).

An employee who is required to travel away from his home in order to perform the duties of his work can be deemed to be in the “continuous employment” of his employer during such a business trip. United States Fid. & Guar. Co. v. Navarre, 147 Ga. App. (1978). In that case the Court of Appeals indicated the proper test when determining whether continuous employment exists is “whether an employee while working away from home is required to lodge and work within an area geographically limited by the necessity of being available for work on the employer’s job site.” An employee’s continuous employment can generally be interrupted if they leave the geographic area for personal reasons or they engage in behavior which is clearly outside of the realm of their job-related tasks. United States Fid. & Guar. v. Skinner, 188 Ga. 823 (1939); Williams v. Atlanta Family Restaurants, Inc., 204 Ga. App. 343 (1992).

Arising Out of Employment

In general, for an injury to “arise out of” one’s employment there must be some causal connection between the employment, or the conditions of the employment, and the injury. Continental Cas. Co. v. Caldwell, 55 Ga. App. 17 (1936); Williams v. Maryland Cas. Co., 99 Ga. App. 489 (1959). In other words, the employee must be doing something in furtherance of the employer’s business at the time of the injury.

Intentionally Self-Inflicted Injury or Death

In order for an injury to be compensable in Georgia, it must be an “injury by accident.” O.C.G.A.§34-9-1(4). If the injury was intentionally inflicted by the employee himself, or arose out of his attempt to injure another, the injury is not compensable. O.C.G.A. §34-9-17(a).

Employee’s Violation of the Law, Willful Failure to Utilize a Safety Device and Intoxication and Illegal Drug Use

The Act prohibits recovery of workers’ compensation benefits that result from an employee’s willful misconduct, willful failure to use a safety device or by intoxication by alcohol or by being under the influence of a controlled substance. O.C.G.A. §34-9-17.

“Willful” means that the employee planned and intentionally acted or failed to act in a certain manner. Armour & Co. v. Little, 83 Ga. App. 762 (1951). The Supreme Court of Georgia has held that “the commission of a crime is willful misconduct within the meaning of our statute, and that the employer should not be required to make compensation for his injury or death, due to his violation of a criminal statute; such violation being the proximate cause of his or her injury. Aetna Life Ins. Co. v. Carroll, 169 Ga. 333 (1929). Most of the cases involving willful violation of a statute involve some sort of traffic violation and the case law does not create any clear rule as to when violation of a statute bars recovery or not. Courts look at the facts on a case by case basis.

In order to raise a defense of failure to use a safety device or appliance, the employer must prove: 1) the employer provided a “safety appliance”; 2) the safety appliance was reasonably accessible to the employee; 3) the employee was aware of the safety appliance’s existence and availability; 4) the employee had been instructed to use the safety appliance in the operation of the machine; 5) the employee knew the danger of failing to use the safety appliance; 6) the employee willfully failed or refused to use the safety appliance, rather than having failed to utilize it through simple neglect or inadvertence; 7) there was no emergency situation; and 8) that the failure to use the safety appliance was the proximate cause of the injury. Liberty Mut. Ins. Co. v. Perry, 53 Ga. App. 527 (1936); Herman v. Aetna Cas. & Sur. Co., 71 Ga. App. 464 (1944).

An employer and insurer have a rebuttable presumption that an employee’s injuries occurred as a result of intoxication, and therefore not compensable, if the employee’s blood alcohol content is shown to be .08 grams or greater within 3 hours of the time of the accident. O.C.G.A. §34-9-17(b)(1). The employer and insurer have the same presumption if there is shown to be any level of a controlled substance in the employee’s blood within 8 hours of the accident. O.C.G.A. §34-9-17(b)(2). The employee can rebut the presumption by presenting evidence that the injury would have occurred regardless of his or her intoxication.

Workplace Violence/Fights

For an injury stemming from workplace violence or a fight to be compensable, the subject matter of the violence must relate to work. Wood v. Aetna Cas. & Sur. Co., 116 Ga. App. 284 (1967); Hartford Acc. & Indem. Co. v. Cox, 101 Ga. App. 789 (1960).

An aggressor in a fight is barred from collecting workers’ compensation benefits. O.C.G.A. §34-9-17(a). It is an affirmative defense, which must be raised by and proven by the employer and insurer. There is a limited exception to the general rule that an aggressor cannot collect workers’ compensation benefits. An employee is entitled to use reasonable force to defend his employer’s property.

Retirement

General Rule

If an employee is receiving weekly workers’ compensation benefits “the mere fact than [the employee] has retired will not, in and of itself, require termination of [the employee’s] weekly workers’ compensation disability benefits upon retirement.” Thomaston Mills, Inc. v. Kierbow, 185 Ga. App. 57 (1987). If a claimant is working, and thus not receiving weekly workers’ compensation income benefits, and elects to retire, he or she must still meet the elements of a change of condition for the worse. City of Atlanta v. Arnold, 246 Ga. App. 762 (2000). In such a situation, in order to be entitled to weekly income benefits the employee must prove that they are disabled and that they have made a diligent, but unsuccessful search for employment within their restrictions from which a judge may presume that the injury caused the disability. Maloney v. Gordon County Farms, 265 Ga. 825 (1995).

BENEFITS

Calculation of Average Weekly Wage

The Georgia Workers’ Compensation Act requires a specific method be used to calculate an injured worker’s Average Weekly Wage (AWW). O.C.G.A. §34-9-260. If the sufficient actual wages are not available, the next option is considered. The claimant bears the burden of proof with regard to the amount of the AWW. Masterpiece Finishing Co. v. Callahan, 180 Ga. App. 216 (1986)

The method of calculating AWW is to use the employee’s gross wages for the 13 weeks preceding the date of injury. Wages from the week of the injury are not included. The claimant must have worked for substantially the whole of the immediately preceding 13 weeks, however. Courts have found that wages for 11 weeks preceding the date of injury does not qualify as “substantial whole”, although it seems likely that 12 weeks would qualify. American Fire & Cas. Co. v. Davidson, 116 Ga. App. 255 (1967).

If the claimant did not work for substantially the whole of the 13 weeks preceding the injury, then use 13 weeks of wages of a “similarly situated employee.” A similarly situated employee does not have to be someone who has the exact same job as the claimant, but rather someone who “at least performs a similar type of job for the same employer” at the same or substantially the same actual pay. Westbrook v. Travelers Ins. Co., 117 Ga. App. 361 (1968).

If neither of the first two methods is available for calculating the AWW, then use the claimant’s full-time weekly wage. AWW is calculated under this method by taking the claimant’s hourly wage and multiplying it by the number of hours that constitute full-time work for the employer, pursuant to his or her agreement with the employer. Federated Mut. Implement & Hardware Ins. Co. v. Elliott, 88 Ga, App. 266 (1950). For example, if an individual makes $10.00 an hour and expects to work 40 hours per week, the AWW would be $400.00.

The AWW is comprised of “any monetary payment or noncash benefit received by the employee in consideration of labor or services performed that constitute a net economic gain to the employee. Burkhart v. Argonaut Ins. Co., 239 Ga. App. 608 (1977). Bonuses, food and lodging, and tips are to be included in the calculation of the AWW. United States Fid. & Guar. Co. v. Branch, 178 Ga. App. 853 (1986); Free v. McEver, 79 Ga. App. 831 (1949); Employers Commercial Union Ins. Co. v. Bryant, 130 Ga. App. 596 (1974). Fringe benefits, including payment of premiums for certain insurance policies by the employer, are not included in the calculation of AWW. Groover v. Johnson Controls World Serv., 241 Ga. App. 791 (2000).

Total Disability

Temporary Total Disability (TTD) Benefits are paid when a claimant is totally disabled, or the employer cannot accommodate light duty restrictions. A claimant is entitled to TTD as long as he suffers a total impairment of his earning capacity. Hensell Phelps Const. Co. v. Manigault, 167 Ga. App. 599 (1983).

TTD benefits are paid at 2/3rds of the claimant’s pre-injury AWW up to the statutory maximum. O.C.G.A. §34-9-261. As of July 1, 2013, the statutory maximum is $525.00 per week.

TTD benefits are capped at 400 weeks from the date of the injury, unless the injury is deemed to be a catastrophic (often called “perm total” in other jurisdictions). Benefits are capped at 400 weeks from the date of the injury, regardless of how many weeks of benefits are actually paid. For example, an injured worker is not necessarily entitled to 400 weeks of benefits. They are only entitled to benefits during the 400-week period during which they are deemed to be disabled.

Partial Disability

Temporary Partial Disability (TPD) benefits are paid when a person’s disability only partially limits their wage-earning capacity. TPD is paid when an injury has impaired the claimant’s ability to earn wages and they must be receiving less than they were being paid prior to the injury. Blevins v. Atlantic Steel Co., 172 Ga. App. 557 (1984); Federated Mut. Implement & Hardware Ins. Co. v. Whiddon, 88 Ga. App. 12 (1953

TPD benefits are paid at 2/3rds of the difference between the claimant’s pre-injury AWW and the post-injury earnings up to the statutory maximum. As of July 1, 2013, the statutory maximum is $350.00. TPD benefits are capped at 350 weeks from the date of the injury, and like TTD benefits, TPD benefits are only payable during the 350-week period after the accident. O.C.G.A. §34-9-262.

TPD benefits can also be paid if a claimant undergoes a “statutory change of condition” pursuant to O.C.G.A. §34-9-104. A claimant’s benefits can be converted from TTD to TPD if they are capable of returning to work with restrictions, but the restrictions cannot be accommodated by the employer, for 52 consecutive or 78 aggregate weeks. In order for the conversion to take place, the Employer and Insurer must serve a claimant with a form WC-104 notifying of the future conversion of the benefits. The form must include a copy of the light duty release from the treating physician, and the employee must have seen the doctor within 60 days of the filing of the form. (Note: effective January 1, 2014 the Board will require that the WC-104 be filed with the Board.)

Impairment Rating

Georgia uses the AMA’s Guides for the Evaluation of Permanent Impairment, 5th edition, when assessing permanent impairment ratings. Georgia State Board of Workers’ Compensation Rule 263.

Permanent partial disability (PPD) benefits are paid to the claimant based upon the rating assigned by the treating physician. O.C.G.A. §34-9-263. PPD benefits are not due while the claimant is still receiving TTD or TPD benefits. Georgia Cas. Co. v. Jones, 156 Ga. App. 664 (1923). The employer or insurer must request a rating from the treating physician within 30 days of last payment of TTD or TPD benefits. Board Rule 263.

The maximum number of weeks of PPD due to a claimant are 300. PPD benefits are assessed by taking the percentage of disability and multiplying it by the maximum weeks of benefits. For example, a 10-percent whole person impairment would result in payment of 30 weeks of PPD benefits. A claimant is entitled to PPD benefits for permanent disability for each permanently impaired member for which they have suffered an injury. N.G. Gilbert Corp. v. Cash, 181 Ga. App. 775 (1987). A person therefore could be entitled to PPD benefits based upon both an impairment to the right upper extremity and to the left foot.

While the maximum weeks of benefits is 300 when rating to the whole person, O.C.G.A. §34-9-263 specifies shorter time periods for individual members of body parts. The rating should be paid to the injured member or body part unless the injury is not to a specific member listed in the schedule, such as back, neck or head. General Motors Corp. v. Summerous, 170 Ga. App. 338 (1984).

Vocational Rehabilitation

Rehabilitation benefits, including vocational rehabilitation, are voluntary in Georgia, except in catastrophic cases governed by O.C.G.A. §34-9-200.1

Employer Job Offer

An employer can offer an employee a light duty job within the employee’s restrictions, pursuant to O.C.G.A. §34-9-240. Board Rule 240 establishes the procedure the employer must follow when offering an employee a light duty job. Courts have held that “strict compliance” of this procedure is required.

In order to offer a claim a job under the 240 process the employer or insurer must submit a copy of the proposed job description to the treating physician. The employer and insurer also must send the proposed job description to the claimant or his/her attorney at the same time. The description must be “a description of the essential job duties to be performed, including hours to be worked, the rate of payment and a description of the essential tasks to be performed.” A form WC-240(a) can be used to create the job description, but its use is not mandatory. Board Rule 61(b)(37). The treating physician must also have examined the employee within 60 days of his or her approval of the light duty job description.

Once the doctor has approved the job the employer can offer the position to the claimant with form WC-240. The employee must be given at least 10 days’ notice of the proposed return to work.

If the claimant fails to report to work at the time indicated on the WC-240 the employer and insurer can suspend his or her benefits immediately. If the claimant returns to work his or her benefits can also be suspended immediately since they returned to work and therefore are no longer disabled. However, oftentimes, an employee will only return to work for a brief period of time and then stop working due to an alleged inability to perform the duties of the job. Effective July 1, 2013, the 240 process was amended to require that the employee complete one full work day or 8 hours of work, whichever is greater, in order for the return to be considered a valid attempt. If the claimant does not make a valid attempt, his or her benefits can be suspended immediately.

If the claimant returns and completes a valid attempt at work, but stops working within 15 working days of the return, the employer and insurer must recommence TTD benefits. Failure to do so result in employer losing the argument that the job was suitable for the employee’s restrictions. After recommencing benefits the employer and insurer can request a hearing seeking a suspension of the claimant’s benefits on the grounds that he or she has unjustifiably refused employment suitable to his or her restrictions.

A claimant is not entitled to income benefits at any time during which he or she refuses suitable employment which is suitable to his or her capacity, unless, in the opinion of the Board such refusal is justified. City of Adel v. Wise, 261 Ga. App. 53 (1991). The Court in that case laid out a two prong test as to whether the claimant’s benefits should be suspended: 1) the position offered must be suitable to the employee’s capacity; and 2) the refusal must not be justified.

The Adel court also held that the suitability of the job refers to the “employee’s capacity or ability to perform the work within his physical limitations or restrictions.” Furthermore, in order for the refusal to be justified the refusal must relate to the physical capacity of the employee to perform the job; the employee’s ability or skill to perform the job; or factors such as geographic relocation or travel conditions which would disrupt the employee’s life.” Courts have held that the following reasons justify the refusal: incarceration prior to adjudication of guilt; adverse impact of return to work on employee’s condition or injury; lack of skills to perform the job; refusal to relocate; and no opportunity for advancement. Scott Hous. Sys. v. Howard, 180 Ga. App. 690 (1986); Clark v. Georgia Kraft Co., 178 Ga. App. 884 (1986); Adel, 261 Ga. App. 53 (1991); Adel, citing a Delaware case with approval; Clark. The following reasons have found not be justified: desire to work a particular shift; desire to avoid non-union work; inconvenient hours; and conflict with another job’s hours. McDaniel v. Roper Corp., 149 Ga. App. 864 (1979); Adel.

Vocational Expert

Vocational experts are often used when there is a dispute as to whether an employee’s injuries qualify him or her for a catastrophic designation under the so-called “catch all” provisions of O.C.G.A. §34-9-200.1(g)(6). That section provides that an injury is deemed to be catastrophic when it “prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified.” Expert testimony is almost always provided by both sides to prove whether or not there is work available for the claimant within his or her restrictions.

Amputation or Loss of Use

An amputation injury, or complete loss of use, will result in payment of the full amount of PPD benefits to the injured member, in most cases. See Impairment Rating above. However, the amputation of an arm, leg, hand or foot, involving the effective loss of use of that appendage, automatically renders the claim to be catastrophic pursuant to O.C.G.A. §34-9-200.1(g)(2).

Disfigurement/Scarring

There is no recovery in Georgia for non-disability producing scarring or disfigurement. Nowell v. Stone Mtn. Scenic R.R., 150 Ga. App. 325 (1979).

Loss of Sight

PPD benefits for the loss of sight of one eye are paid for a maximum of 150 weeks. O.C.G.A. §34-9-263. Therefore, if an employee loses 50-percent of his or her vision in one eye he or she is entitled to 75 weeks of PPD benefits.

An employee who has total or industrial blindness is deemed to have a catastrophic injury pursuant to O.C.G.A. §34-9-200.1(g)(5).

Loss of Hearing

Georgia draws a distinction between traumatic hearing loss, which is governed by O.C.G.A. §34-9-263(c)(12) and hearing loss due to occupational exposure, which is governed byO.C.G.A. §34-9-264.

Traumatic hearing loss is loss which stems from a physical injury and is handled as part of the PPD benefit statute. Complete hearing loss in one ear results in maximum payment of 75 weeks of PPD benefits, while complete loss in both ears results in maximum payment of 150 weeks of PPD benefits. A claimant can obtain PPD benefits for partial hearing loss, e.g. 7.5 weeks of benefits for 10-percent hearing loss to the left ear.

Hearing loss due to occupational exposure is handled differently. O.C.G.A. §34-9-264 sets out the eight prerequisites for a compensable claim of occupational hearing loss. They are: 1) the loss of hearing must be permanent rather than merely temporary; 2) the loss must be sensoineural (originating from the inner ear, auditory nerve or brain) rather than tinnitus or a psychogenic hearing loss; 3) the hearing loss must be present in both ears, rather than in just one, unless there is a preexisting loss of hearing due to congenital deafness, disease or trauma in one ear; 4) the loss of hearing must be present at the frequencies of 500, 1000 and/or 2000 cycles per second, rather than at frequencies below 500 or above 2000 cycles per second; 5) the losses of hearing must average greater than 15 decibels )26 decibels if ANSI or ISO) in the three frequencies (500 cycles, 1000 cycles and 2000 cycles per second); 6) the loss of hearing must be caused by “prolonged” (greater than 90 working days or parts thereof) exposure in Georgia employment; 7) the hearing loss must be caused by “harmful noise” (sound in excess of 90 decibels, A scale or greater); and 8) no claim for compensation for occupational hearing loss may be filed until at least six months have elapsed since the employee’s exposure to harmful noise with his or her last employer.

O.C.G.A. §34-9-264(b)(6) provides an affirmative defense to the employer when the “employee fails to regularly utilize the employer-provided protection device or devices, which are capable of preventing loss of hearing from the particular loss of hearing from the particular harmful noise where the employee works.” The employer must prove that it provided such devices and that they prevent hearing loss.

If a claim for occupational hearing loss is successful the claimant is entitled to PPD benefits based on the results of audiological tests performed with instruments which are calibrated in accordance with national standards such as ANSI or ASA. The maximum weeks of PPD a claimant is eligible for in an occupational hearing loss claim is 150.

Penalties

Georgia has different late penalties, depending on the type of benefit that is late.

1) Income benefits

2) If income benefits are not paid when due there is a 15-percent late payment penalty. O.C.G.A. §34-9-221(e).

3) Settlements: If a settlement is not timely paid (17 days if paid from out of state, 20 days if paid within the state) a 20-percent penalty is due on the unpaid or late portion. O.C.G.A. §34-9-221(f).

4) Payment of medical bills: if a medical bill is not paid within 30 days there is a 10-percent late penalty if it is paid within 60 days of the invoice; a 20-percent penalty if paid between 60 and 90 days of receipt; and a 20-percent penalty plus 12-percent per annum interest if paid after 90 days. O.C.G.A. §34-9-203(c)(3)

The medical bill must be proper, which requires that it be submitted along with the associated medical records. O.C.G.A. §34-9-205(a) and Board Rule 205(a).

5) Payment of mileage reimbursement request: if a mileage reimbursement request is not paid within 15 days of its receipt by the employer or insurer there is a 15-percent late penalty. O.C.G.A. §34-9-203

In addition to the above, civil penalties may be assessed in certain circumstances pursuant to O.C.G.A. §34-9-18. Civil penalties in the amount of $100.00 to $1,000.00 can be assessed against any person who 1) willfully fails to file any form or report required by the Board; 2) fails to follow any order or directive of an ALJ or the Board; or 3) violates any of the Board’s rules. A penalty of up to $10,000.00 can be assessed against any person who knowingly and intentionally makes any false or misleading statement or representation for the purpose of facilitating the obtaining or denying of any benefit or payment under the Act.

Additionally, an employer can be penalized if they fail to comply with the Act’s insurance requirements. O.C.G.A. §34-9-18(c) and 34-9-126(b).

Interest

There are three instances in which payment of interest arises in Georgia. The first is discussed above in section Penalties regarding timely payment of medical bills. The second involves re-payment of advances. An advance is to be repaid with 5-percent interest. O.C.G.A. §34-9-222(b). Finally, there is a 12-percent interest penalty to be paid on any award which is appealed to the superior court, Court of Appeals or Supreme Court of Georgia. O.C.G.A. §34-9-107

Costs

If proceedings have “been brought, prosecuted or defended in whole or in part without reasonable grounds, the administrative law judge may, in addition to reasonable attorney’s fees (to be addressed in the next section), award to the adverse party in whole or in part reasonable litigation expenses against the offending party. O.C.G.A. §34-9-108(b)(4).

Counsel Fees

Customarily, fees for counsel for the employer and insurer are paid by the employer and insurer on an hourly basis. On the other hand, counsel for employees are paid on a contingency fee basis. Georgia law limits their recovery to 25-percent of any benefits obtained on their behalf, plus reasonable expenses. Board Rule 108(a).

Attorney’s fees can be assessed against either party in three primary circumstances: 1) where the proceedings have been brought, prosecuted or defended in whole or in part without reasonable grounds; 2) where the employer, or its insurer has failed, without reasonable grounds, to comply with the provision of O.C.G.A. §34-9-221 and the claimant has to engage the services of any attorney and ultimately prevails; and 3) where an employer, who is subject to the Act, refuses or willfully neglects to comply with the Act’s requirement that it be insured, or certified as self-insured, for workers’ compensation purposes. O.C.G.A. §34-9-108(b)(1) and (2); O.C.G.A. §34-9-126(b)(2).

A determination as to whether a party has brought or defended a claim without reasonable grounds is a question of fact for the ALJ. American Motorist Ins. Co. v. Corbett, 144 Ga. App. 845 (1978). Such a finding will be upheld if there is any evidence to support it. Motor Convoy, Inc. v. Maddox, 172 Ga. App. 430 (1984).

Death Benefits

Widow/Widower

A surviving spouse is presumed to be wholly dependent upon the deceased employee if 1) they can produce a valid marriage license showing marriage at the time of the accident; and 2) they were not living apart for a period of 90 days immediately preceding the accident, which resulted in the death. Hartford Acc. & Indem. Co. v. Fuller, 102 Ga. App. 384 (1960). If the surviving spouse and the deceased worker lived separately during the 90-day period before the accident, there is a rebuttable presumption of dependency. O.C.G.A. §34-9-13(e).

If the surviving spouse is the “sole surviving spouse”, that is there were not any children in the relationship, or the children from the relationship are no longer dependent, the surviving spouse receives all of the benefits, which are paid at the TTD rate. The surviving spouse is entitled payment of benefits until age 65, or after payment of 400 weeks of benefits, whichever is greater. O.C.G.A. §34-9-13(e). However, there is a maximum of $150,000.00 in benefits. O.C.G.A. §34-9-265(b)(4). However, the surviving spouse’s entitlement to benefits can also expire upon their death, remarriage or entrance into a cohabitating, meretricious relationship. United States Fid. & Guar. Co. v. Hairston, 37 Ga. App. 234 (1927); Hartford Acc. & Indem. Co. v. Fuller, 102 Ga. App. 384 (1960); and O.C.G.A. §34-9-13(e). A meretricious relationship is one in which individuals of the opposite sex are living together continuously and openly in a relationship similar or akin to marriage, and which includes sexual intercourse or the sharing of expenses.

If the deceased is survived by both children and a spouse, as long as the children remain dependent (see section Death Benefits/Children below), the payments are made to the parent on behalf of the children for his or her use, and that of the children. Once the children are no longer dependent, the benefits will continue to be paid to the surviving spouse, as long as they have not remarried, died, or entered into a meretricious relationship. A surviving spouse, who shared dependency with children, is entitled to a maximum or 400 weeks of benefits from the date of accident, or until they reach the age of 65, whichever provides the greater benefits.

Death Benefits/Children

A “child” for purposes of determining dependency includes natural children, stepchildren, legally adopted children and acknowledged children born out of wedlock. A child of the deceased who is married, regardless of their age at the time of the marriage, is no longer considered to be a dependent. O.C.G.A. §34-9-13(a)(1).

Children of a deceased worker are presumed to be totally dependent if: 1) they are under age 18 and enrolled full-time in high school; 2) they are older than 18, but physically or mentally incapable of earning a living; or 3) they are less than 22 years old, but enrolled full-time, in good standing, at a post-secondary institution of higher learning. O.C.G.A. §34-9-13(b)(2). In the event that a dependent child is adopted by another individual, during their period of presumptive disability, that child’s entitlement to weekly dependency benefits will not be terminated. United States Fid. & Guar. Co. v. Dunbar, 112 Ga. App. 102 (1965).

A dependent child will continue to draw benefits as long as they continue to fit into the criteria set forth above. A child’s benefits will also terminate upon their marriage, regardless of their age, or death. O.C.G.A. §34-9-13(a)(1).

Death Benefits/Parents and Siblings

If primary dependents exist no other dependent will receive benefits as long as the primary dependents remain dependent. However, if the primary dependents are no longer dependent, have waived the right to benefits, or did not exist at all, secondary dependents, which can include parents, siblings, or anyone else who was dependent on the deceased, may be entitled to benefits. O.C.G.A. §34-9-13(c).

If the secondary dependent was a totally dependent on the deceased employee they are entitled to the maximum death benefit for as long as they remain dependent. Their dependency can potentially last for the remainder of their life. O.C.G.A. §34-9-265(c).

If a person was only partially dependent upon the deceased employee they can only recover if there are not any primary dependents, nor secondary total dependents. O.C.G.A. §34-9-265(c). If a secondary dependent is only partially dependent they are only entitled to a pro rata share of the maximum death benefit, which reflects the benefits being provided to them by the deceased prior to his/her death. O.C.G.A. §34-9-13(d). For example, if a deceased employee gave his mother $100.00 of the $1,000.00 he made each week, the mother would only be entitled to 1/10th of the death benefits. If the death occurred after July 1, 2007, the mother would only be entitled to $50.00 per week in death benefits.

There can be more than one partial dependent in fact, but the total amount awarded to the partial dependents cannot exceed the maximum compensation rate. While total dependents in fact can potentially receive benefits for the remainder of their life, partial dependents in fact are only eligible for benefits until they reach age 65, or after receiving 400 weeks of benefits, whichever provides greater benefits. O.C.G.A. §34-9-13(e).

Death Benefits/Amounts of Benefits

In a compensable death, the benefits due include weekly dependency benefits (if there are dependents), payment of the reasonable expenses associated with the deceased’s last sickness; and burial expenses up to $5,000.00. O.C.G.A. §34-9-265. If an employee dies without any dependents the employer and insurer must make payment in the amount of $10,000.00 to the Board.

Medical Benefits

An employee is entitled to medical treatment, which is designed to affect a cure, give relief or restore the employee to suitable employment. O.C.G.A. §34-9-200(a). The treatment must be reasonable and necessary. It further must be recommended by an authorized physician. Georgia Power Co. v. Brasill (171 Ga. App. 569 (1984).

An employer is required to maintain a Panel of Physicians, from which the employee can choose a provider. O.C.G.A. §34-9-201. The most common type of Panel is the traditional panel, which requires at least six unassociated physicians be listed. One of the physicians must be an orthopedic surgeon and there cannot be more than two “industrial” clinics. O.C.G.A. §34-9-201(b). Furthermore, pursuant to Board Rule 201(a)(1) the panel must include at least one minority physician.

The doctor or clinic chosen by the employee is deemed to be the authorized treating physician. The employee can make one change of physician to another provider on the panel without authorization of the Board. Board Rule 201(a).

If an employer does not have a proper panel, or fails to instruct the employee on the function and procedures of the panel, the employee can pick any physician for treatment. O.C.G.A. §34-9-201(c).

An employer or insurer can deny treatment recommended by the treating physician on two primary grounds: treatment which is denied on the grounds that it is not related to the compensable injury; or that it is not reasonably necessary to affect a cure, give relief or restore the employee to suitable employment. The claimant bears the burden of proof when treatment is denied as being unrelated to the injury. Board Rule 205(b)(3)(c). If treatment is denied on the grounds that it is not reasonable necessary, the employer and insurer bear the burden of proof. Board Rule 205(b)(1).

The employer and insurer can require the employee to attend an Independent Medical Examination (IME) “as long as he claims compensation . . .at reasonable times and places.” O.C.G.A. §34-9-202. The employer and insurer can therefore request as many IMEs as they want, as long as the other prerequisites are met.

The employee can also have as many IMEs as he or she wants, but the employer and insurer are only obligated to pay for one. In order for the claimant to obtain an employer-paid IME the claim must be accepted as compensable; the examination must be requested within 120 days of receipt of any income benefits; the examination must take place at a reasonable time and place, within the state or within 50 miles of the employee’s residence; the IME must be performed by a duly qualified physician or surgeon; the employer must be notified in writing in advance of the appointment; and the IME must not repeat any diagnostic tests or procedures, which have already been performed. O.C.G.A. §34-9-202(e).

Prior to July 1, 2013, an employee was entitled to medical treatment for life, as long as the treatment is related to the compensable injury. However, effective July 1, 2013, an employee’s entitlement to medical treatment is capped at 400 weeks, unless the claim has been designated as catastrophic. O.C.G.A. §34-9-200(a)(2).

Refusal of Medical Treatment

Pursuant to O.C.G.A. §34-9-200(c), “As long as an employee is receiving compensation, he or she will submit himself or herself to examination by the authorized treating physician at reasonable times. If the employee refuses to submit himself or herself to or in any way obstructs such an examination requested by and provided for by the employer, upon order of the board his or her right to compensation will be suspended until such refusal or objection ceases and no compensation will at any time be payable for the period of suspension unless in the opinion of the board the circumstances justify the refusal or obstruction.”

While Board Rule 200(f) provides that the employer and insurer can suspended the employee’s benefits for failing to cooperate with treatment, the Board does not have the authority to suspend benefits unless the employee has first refused to comply with a Board order, which orders him or her to comply with the treatment. Bituminous Cas. Co. v. Dyer, 62 Ga. App. 279 (1940). Therefore, in order for an employer or insurer to achieve a suspension of benefits they must first request an order compelling the employee’s cooperation with treatment and then file a second motion seeking the suspension if the claimant fails to comply with the Board order.

SUBROGATION OR CREDIT

General Rule

Pursuant to O.C.G.A. §34-9-11.1, if an employee files a third-party lawsuit or claim asserting that a party other than the employer is liable for his injuries, the employer and insurer have a subrogation lien, which is limited to the benefits they paid to the employee, and have a right to intervene in the action to recover the lien. In order for the employer or insurer to recover they must prove that the employee has been “fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and non-economic losses incurred as a result of the injury.” Anthem Cas. Ins. Co. v. Murray, 246 Ga. App. 778 (2000).

While the subrogation statute does not provide the method by which the employer and insurer can meet their burden of proof, oftentimes a special verdict form is used. In fact, the Court of Appeals has found a special verdict form to be the most practical method. Department of Admin. Servs. v. Brown, 219 Ga. App. 27 (1995). The Court of Appeals also recently re-affirmed that the employer and insurer have an unconditional right to intervene in a third-party suit to attempt to recover their lien. Kroger v. Taylor, 320 Ga. App. 298 (2013).

Credits

Credits and offsets are governed by O.C.G.A. §4-9-243. Under that section, an employer or insurer is entitled to a credit when benefits are paid to an employee that are not due. The amount of the credit cannot exceed the amount of the overpayment. An employer or insurer who takes a credit or makes a reduction to offset a payment must file a form WC-243 with the Board.

Furthermore, an employer or insurer can take credit against any TTD or TPD benefits due to an employee when that employee receives payments under a disability plan, a wage continuation plan, or from a disability insurance plan, provided that the benefits are provided by the same employer from which the employee is seeking workers’ compensation benefits. Unemployment benefits are included in this The employer is only entitled to take a credit for the percentage of the benefits they provide to the employee. For example, if an employer pays 50-percent of the premiums for a short-term disability plan, they can only claim a 50-percent credit.

ATTORNEYS

Rule 1-203 of the Rules and Regulations for the Organization and Government of the State Bar of Georgia controls the practice of law before the Board. Board Rule 102(A)(1). Rule 1-203 provides that a person cannot practice law in the State of Georgia unless the person is a member of the Bar of Georgia and is in good standing, absent several exceptions.

CLAIMS PROFESSIONALS

Adjusters must be licensed by the Georgia Department of Insurance in order to manage and adjust workers’ compensation claims. O.C.G.A. § 33-23-43(b). Adjusters licensed solely as workers’ compensation adjusters may either complete 20 hours of continuing education courses through the State Board of Workers’ Compensation every two years, or complete 20 hours of property and casualty continuing education with a minimum of six hours of Ethics every two years. Ga. Admin. Comp. Ch. 120-2-3-.15.

Litigation and Appeal

Workers’ Compensation Judge Proceedings

The Georgia State Board of Workers’ Compensation is an agency within the executive branch of the State of Georgia. The Board is led by a Chairman who is appointed by the Governor for a term of four years. The Governor appoints two other members of the Board for a term of four years and the three-person Board in turn appoints administrative law judges to hear cases brought before the State Board, as well as various other support staff.

Trial Division – Appointment and Qualifications of Administrative Law Judges

The trial division is composed of administrative law judges (ALJs) who are assigned to hear cases in litigation and render awards, subject to appeal and review. Although the administrative law judges are not statutorily prohibited from engaging in the practice of law, a resolution of the State Board declares that it is the policy of the State Board that they devote their entire time to their duties and that they not engage in any occupation or business that would interfere or be inconsistent with those duties. 1970 Ops. Atty’ Gen. No. 70-45.

There are no statutory minimum qualifications to serve as an administrative law judge of the State Board of Workers’ Compensation. By custom, administrative law judges have been attorneys in good standing with the State Bar of Georgia. Administrative law judges have the authority to subpoena witnesses, administer oaths, and take testimony, and will make an award after hearing a case. O.C.G.A. § 34-9-47(c).

Procedure

Proceedings before an ALJ are governed by O.C.G.A. § 34-9-102. The statute establishes time frames within which notices of hearing are to be issued; the venue of hearings; the authority of the ALJ in cases assigned; procedures for discovery; procedures for the admission of evidence at hearing, including a special provision for the submission of medical records and a special provision for the admission of reports from prospective employers regarding an employee’s job search activities, and a special provision for the admissibility of written laboratory test reports.

The ALJ is required to issue a written award, including findings of fact and conclusions of law, to determine the issues presented for hearing. The award must be issued within 30 days after the close of the evidence, unless extended by the State Board of Workers’ Compensation. The award becomes final twenty days after issuance unless appealed as provided by law. The ALJ may correct errors or omissions in the original award prior to its becoming final and issue a substitute award containing those corrections. O.C.G.A. § 34-9-102(f).

The ALJ has the same powers as a trial court of record to enforce its orders against parties to a claim pending before it. If a non-party refuses to comply with an Order, the ALJ may certify the facts to the superior court of the county in which the refusal occurred for enforcement or sanction.O.C.G.A. § 34-9-102(h).

The Georgia Workers’ Compensation Act provides that the Board has the authority to direct the parties to any claim to participate in mediation conducted under the supervision and guidance of the State Board. O.C.G.A. § 34-9-100(b). In practice, this procedure is generally utilized to address isolated disputes in accepted claims. One or both of the parties may also request mediation for this purpose, or may request a conference call with an administrative law judge to obtain an expedited resolution of an issue where there are no disputed facts that would require a hearing.

The State Board’s rules also provide for voluntary mediation by agreement of the parties for the purpose of an all issues settlement. Board Rule 100(d). The mediation may be conducted by an ALJ, or by an employee of the State Board who is not an ALJ. There is no charge for the Board’s services as mediator. Although there are no provisions in the Act or in the Board’s rules that address private mediation, Georgia has a robust alternate dispute resolution bar and a number of attorneys will provide mediation services to the parties for a fee.

All matters to be adjudicated by an ALJ are initiated by the filing of a request for hearing specifying the issues for hearing on the prescribed form (a WC-14). There are no responsive pleadings to a request for hearing in Georgia practice.

The injured worker is known as a “claimant” in Georgia workers’ compensation practice. In the event that the injured worker dies as a result of the work injury, the claimant will be the dependent or dependents seeking benefits under the Act. O.C.G.A. § 34-9-265.

A claim for benefits is filed against the Employer. If the Employer is insured, the Insurer is also named as a party and all proceedings are against both employer and insurer. Any contract of insurance issued pursuant to the Act must obligate the insurer to pay all benefits conferred by the Act and all compensation awarded or agreed upon. O.C.G.A. § 34-9-124. The insurer is granted the same immunities and protections as those conferred upon the employer by the Act. Coker v. Great Am. Ins. Co., 290 Ga. App. 342, 659 S.E.2d 625 (2008).

A health care provider or group insurance company that covers the costs of medical treatment provided to an injured employee who subsequently files a claim for benefits may request to be made a party to the claim in order to recover the costs of the treatment.O.C.G.A. § 34-9-206.

The Act provides for limited discovery. If a claim is litigated; that is, if a party files a hearing request with the State Board, then the Georgia Civil Practice Act governs discovery (O.C.G.A. § 9-11-1 et seq). If the there is no hearing request pending in the claim, then only very limited discovery is provided by Board Rule 102. An employee may request board forms prepared by the employer and insurer, medical records, the employer’s panel of physicians, wage records, and any job description or analysis provided to the authorized treating physician to obtain clearance for the employee’s return to work. The employer and insurer may obtain wage records for the purpose of investigating a claim for temporary partial disability benefits and medical records. The request is made using Board Form 102, and Board Rule 102 spells out that the parties are limited to discovery of the documents listed on that form.

Any employee who receives or claims entitlement to benefits under the Act Is deemed to have waived any privilege or right of confidentiality with respect to any information and records pertaining to the claim or history or treatment of injury reasonably related to the condition for which compensation is sought. O.C.G.A. § 34-9-207(a). The employee must provide the employer and insurer, upon request, with a signed authorization for health care providers to provide information and records. O.C.G.A. § 34-9-207(b). The State Board form for this purpose is Form WC-207. If the employee refuses to provide the requested authorization, the State Board may deny compensation or a hearing until the employee provides it. O.C.G.A. § 34-9-207(c). The Health Insurance Portability and Accountability Act (“HIPAA”) does not limit access to information in a workers’ compensation case. Arby’s Restaurant Group, Inc., v. McRae, 292 Ga. 243, 734 S.E.2d 55 (2012).

As a matter of practice, fact witnesses, such as the claimant, any corroborating witnesses for claimant, the defendant employer and any rebuttal witnesses for the employer generally testify in person at the hearing before the ALJ. Expert witnesses such as physicians generally testify by deposition; the transcript of the deposition is admitted into evidence at the hearing.

Investigatory Powers

The State Board is authorized to make or cause to be made any investigation that it deems necessary, and may order a hearing on its own motion or at the request of any interested party. O.C.G.A. § 34-9-100. At the hearing, the ALJ has the power to administer oaths and affirmations, to issue subpoenas, to rule upon offers of proof, to regulate the course of the hearing, to set the time and place of continued hearings, to fix the time for filing briefs, to rule upon motions, to rule upon requests for continuance, to add or delete parties, to issue interlocutory orders, to appoint conservators if required by law, and to reprimand or exclude from the hearing any person for indecorous or improper conduct committed in the ALJ’s presence. O.C.G.A. § 34-9-102.

The ALJ has the same power to enforce his or her orders as a trial judge is given by the Civil Practice Act with respect to parties; however, if a person not a party refuses to comply with an order, the matter must be referred to the superior court of the county where the offense was committed for enforcement or sanctions. O.C.G.A. § 34-9-102(h).

Decision

The ALJ is required to issue a decision, composed of a concise report of the case with findings of fact, conclusions of law, and any other necessary explanation for the decision rendered. O.C.G.A. § 34-9-102(f). By administrative practice, all such decisions are referred to as “Awards,” whether compensation is granted or denied.

Expert testimony, including the opinions of physicians, is advisory only, and no single medical opinion is dispositive. Department of Revenue v. Graham, 102 Ga. App. 756 (1960). Uncontradicted evidence is also not binding; it may be rejected even though not contradicted. Cooper v. Lumbermen’s Mut. Cas. Co., 179 Ga. 256 (1934).

The Appellate Division of the State Board must accept the ALJ’s findings of fact where the findings are supported by a preponderance of competent and credible evidence contained within the records. O.C.G.A. § 34-9-103(a). Where the Appellate Division does not believe that the ALJ’s factual findings are supported by a preponderance of competent and credible evidence, however, the Appellate Division may substitute its own factual findings based upon its review of the record. Upon further review on appeal, however, the superior court (sitting as an appellate court), the Court of Appeals, and the Supreme Court of Georgia must accept the factual findings of the State Board if those findings are supported by “any evidence,” as the State Board is the fact-finder and the sole judge of the credibility of witnesses and the weight to be given to testimony and evidence.

Appellate Division

The Appellate Division is composed of the three members of the State Board appointed by the Governor. O.C.G.A. § 34-9-47(b). The three members of the State Board must be attorneys in good standing with the State Bar of Georgia with at least seven years of practice experience. O.C.G.A. § 34-9-42(b).

Any party dissatisfied with an ALJ’s decision may appeal that decision to the Appellate Division within twenty (20) days of the issuance of the ALJ’s award. The other parties to the case may file a cross appeal within thirty (30) days of the issuance of the award. O.C.G.A. § 34-9-103(a). An appeal of an interlocutory (non-final) ruling of the ALJ will be considered only if the ALJ certifies that the ruling is so important that immediate review should be had. Board Rule 103(d).

The Appellate Division will, following review of the evidence, issue its own award containing findings of fact and conclusions of law, and will accept the findings of fact made by the ALJ if those findings are supported by a preponderance of the competent and credible evidence. O.C.G.A. § 34-9-103(a). The Appellate Division may remand the case to an ALJ for reconsideration and correction of errors or omissions, with or without the receipt of additional evidence. Id.

The Appellate Division may reconsider and issue a new award to reconsider, amend, or revise its initial award to correct errors or omissions within twenty (20) days from the issuance of the award. O.C.G.A. § 34-9-103(b).

The State Board’s rules provide that review will be by brief only unless a party requests oral argument at the time a request for review is made or within ten (10) days of the service of the application for review. Oral argument, if granted, is limited to five (5) minutes per party. Board Rule 103(b).

A party seeking review must submit an enumeration of errors with the application. Failure to do so may result in dismissal of the appeal. Board Rule 103(b)(1).

The party seeking review has twenty (20) days from the date on the certificate of service of the request for review to file a brief with the State Board. Opposing parties have twenty (20) days from the date on the certificate of service of the initial brief to file a responsive brief. Board Rule 103(b)(2). Although the Rules do not address reply briefs, the State Board will permit the appealing party to file a reply brief. Briefs are limited to twenty (20) pages.

Superior Court Review

A party dissatisfied with a final decision of the Appellate Division of the State Board may appeal to the superior court of the county in which the injury occurred within twenty (20) days of the issuance of the award. O.C.G.A. § 34-9-105(b). There is no provision for an appeal of an interlocutory decision of the State Board. Strickland v. Crossmark, Inc., 298 Ga. App. 268 (2009).

The appeal is filed, in writing, with the State Board, and must state generally the grounds for appeal. O.C.G.A. § 34-9-105(b). The State Board is given thirty (30) days to transmit the record to the designated superior court, but that deadline has been held to be directory. Aetna Cas. & Sur. Co. v. Nuckolls, 69 Ga. App. 649 (1943).

The Superior Court may address only issues raised before the State Board. If an issue was not raised, it is deemed waived. This rule includes constitutional challenges, even though the State Board is an administrative agency and not a court. Harrison v. Southern Talc Co., 245 Ga. 212 (1980).

The State Board is the exclusive fact finder in workers’ compensation claims; the superior court is not empowered to make factual findings. Sears v. Macon Water Auth., 276 Ga. App. 194 (2005). The superior court must accept the State Board’s findings of fact if supported by “any evidence.” Owens Brockway Packaging, Inc., v. Hathorn, 227 Ga. App. 110 (1997). The only exception is if the decision was procured as a result of fraud. O.C.G.A. § 34-9-105(c).

If the Superior Court does not hear the case within sixty (60) days after docketing, the case is considered to have been affirmed by operation of law unless a hearing had been scheduled during the 60 days but continued to a date certain. The case is also considered to have been affirmed by operation of law if a hearing was timely held but no order disposing of the issues on appeal has been entered within twenty (20) days of the hearing.

The only grounds upon which the superior court may set aside the decision of the State Board are:

1) The State Board acted without or in excess of its powers;

2) The decision was procured by fraud;

3) The facts found do not support the decision;

4) There is not sufficient competent evidence to warrant the decision; or

5) The decision is contrary to law.

O.C.G.A. § 34-9-105(c).

If the superior court sets aside the State Board’s decision, it can either recommit the case to the State Board for further proceedings or enter the proper judgment, as appropriate. O.C.G.A. § 34-9-105(d).

Appeal to Court of Appeals

A party dissatisfied with a decision of the superior court may file an Application for Discretionary Appeal to the Court of Appeals within thirty (30) days of the decision of the superior court.O.C.G.A. § 5-6-35(a). If the case is affirmed by operation of law, the time for filing the application is measured from the last date upon which the superior court could have lawfully acted. O.C.G.A. § 34-9-105(d).

SETTLEMENT

Mandatory Mediation

The Georgia Workers’ Compensation Act provides that the State Board has the authority to direct the parties to any claim to participate in mediation conducted under the supervision and guidance of the State Board. O.C.G.A. § 34-9-100(b). Each party must have at least one person in attendance with adequate authority to resolve all pending issues, and the employee must personally attend. Board Rule 100(g)(1).

In practice, this procedure is generally utilized to address isolated disputes in accepted claims. One or both of the parties may also request mediation for this purpose.

Voluntary Mediation

The State Board’s rules also provide for voluntary mediation by agreement of the parties for the purpose of an all issues settlement. Board Rule 100(d). The mediation may be conducted by an ALJ, or by an employee of the State Board who is not an ALJ. There is no charge for the Board’s services as mediator. Although there are no provisions in the Act or in the Board’s rules that address private mediation, Georgia has a robust alternate dispute resolution bar and a number of attorneys will provide mediation services to the parties for a fee.

Expedited Resolution Conference

A party may request a conference call with an administrative law judge to obtain an expedited resolution of an issue where there are no disputed facts that would require a hearing

Bona Fide Dispute Settlements

Settlement of claims between the employee and the employer and insurer is encouraged as a matter of public policy. The parties may settle a claim on the basis that there is a bona fide dispute as to the facts, the resolution of which may materially impact the right to receive compensation or the amount of compensation to be recovered, if the parties arrive at a settlement based upon an agreement that gives due regard and weight to the conflicting evidence available. The insurer must give the employer advance notice of the terms of the settlement. The settlement is not binding until it has been reviewed and approved by the State Board. Once approved, the settlement is a complete and binding disposition of all claims, and is not subject to amendment, modification, or change. O.C.G.A. § 34-9-15(a).

No Liability Settlements

The parties may also settle a disputed claim by submitting a stipulation to the State Board that there is no liability under the Act. The settlement is not binding until it has been reviewed and approved by the State Board. Once approved, the settlement is a complete and binding disposition of all claims, and is not subject to amendment, modification, or change. O.C.G.A. § 34-9-15(a). The State Board will not permit a no liability settlement in a case in which weekly benefits (TTD, TPD, or PPD) have been paid to the employee.

INSURANCE

General Rule

Every employer liable for workers’ compensation benefits in Georgia must insure the payment of compensation to its employees. O.C.G.A. § 34-9-120. The employer may do so by either purchasing insurance from an insurer licensed in Georgia; by providing proof of capacity to self-insure, which may include the deposit of security, indemnity, or bond; or by proof of membership in a mutual insurance company licensed in Georgia. O.C.G.A. § 34-9-121(a).

Particular Requirements

All policies of workers’ compensation insurance will be standard policies that contain the usual and customary provisions. O.C.G.A. § 34-9-122. All policies must provide that notice to or knowledge of the injury by the employer constitutes notice to or knowledge of the insurer, that jurisdiction over the employer constitutes jurisdiction over the insurer, and that the insurer is bound by any award, judgment, or decree issued against the employer. O.C.G.A. § 34-9-123. All policies must provide that no post-injury default by the employer will impact the insurer’s obligation to pay all benefits conferred by and compensation due under the Act. O.C.G.A. § 34-9-124(a). If an insurer issues a policy to provide coverage to an exempt employer, the insurer may not plead the exemption from the Act as a defense.O.C.G.A. § 34-9-124(b).

General Rule Where Employer is Uninsured

Every employer subject to the Act must file proof of compliance with the State Board with its obligation to provide insurance as provided in O.C.G.A. § 34-9-121. If an employer fails to do so, it is subject to additional compensation of 10% of the amount otherwise due under the Act as well as assessed attorneys’ fees payable to the employee’s attorney. O.C.G.A. § 34-9-126. The employer remains directly liable for payment of workers’ compensation benefits. Sheehan v. Delaney, 238 Ga. App. 662 (1999).

Damages by Action at Law Where Employer is Uninsured

If the employer is subject to the Act, the employer is immune from suit even if it was uninsured. Sheehan v. Delaney, 238 Ga. App. 662 (1999). The employer must pay benefits directly, and if it is insolvent, the employee may proceed directly against the employer’s agents responsible for obtaining insurance coverage, but the recovery is limited to the benefits due under the Act. Id.

Guaranty Funds

The General Assembly created the Georgia Insurer’s Insolvency Pool to fulfill the obligations of insurers determined to be insolvent. O.C.G.A. § 33-36-1 et seq. The pool includes a workers’ compensation account. O.C.G.A. § 33-36-2. Claims for punitive damages and attorney’s fees are not covered by the Pool, and therefore the pool is not liable for assessed attorney’s fees, even if previously assessed against the employer and insurer. Claxton Mfg. Co. v. Hodges, 201 Ga. App. 371 (1991). The General Assembly has also created the Self-Insurers Guaranty Trust Fund to fulfill the obligations of self-insurers who become insolvent. O.C.G.A. § 34-9-380 et seq.

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