Tuesday, September 4, 2012

GA WC Basic Procedures



Explanation of Basic Procedures

A. Initiating Claim

1. Accident must arise out of, and in the course of, employment. (O.C.G.A. § 34-9-1).
a. "Arising out of" means what the Employee/Claimant is doing is related to work;

b. "In the course of" means when the Employee/Claimant is where he is expected or supposed to be;

c. Individual must be employee, not independent contractor. (Note: Employees of subcontractors may be covered).

2. Notice -- Employee/Claimant must tell the Employer of incident/accident as soon as practicable after the injury. (O.C.G.A. § 34-9-80).

a. If no verbal report of an accident or injury is given to an Employer within thirty (30) days, written notice must be given. (O.C.G.A. § 34-9-80; 34-9-81).

b. If no verbal or written notice is given, the Employee/Claimant is barred from receiving workers’ compensation benefits.

c. Employee can be entitled to workers’ compensation benefits if the Employer was aware of the accident.

d. "Constructive notice" -- if the Employer should have known (by the Employee/Claimant’s absence, wearing braces or bandages, or by behavior such as showing pain or limping).

e. Notice to the Employer = Notice to the Insurer. (O.C.G.A. § 34-9-123).

3. Filing of claim -- Claim must be filed by Employee/Claimant within one (1) year of the injury date, disability date or last remedial treatment provided by Employer. (O.C.G.A. § 34-9-82).

a. If Employer does not have a posted Panel of Physicians, any medical treatment the Employee/Claimant obtains will be deemed to have been provided by the Employer;

b. Employee/Claimant may "file" claim by filing form WC-14 with State Board of Workers’ Compensation.

4. Investigation of claim -- the Employer has twenty-one (21) days from date of knowledge of a claim to pay benefits or to controvert (deny) claim (O.C.G.A. § 34-9-221(b)). Options:

a. Accept claim by paying income benefits and paying on weekly basis;

b. Deny claim by stating reasons for denial on either subsection "C" of WC-1 or WC-3, filing denial with State Board of Workers’ Compensation and sending copy to all parties and medical providers who have treated the Employee/Claimant. (Board Rule 61(b)(4)).

5. Medical Only Claims -- Payment of medical bills is not equivalent to accepting claim. It may, however, extend statute of limitations.

B. Insurance Coverage

1. The Employer, with three (3) or more employees, has the obligation to insure payment of benefits by either obtaining insurance or qualifying with State Board of Workers’ Compensation as self-insured. (O.C.G.A. § 34-9-121; 34-9-127).

2. Employment -- If the individual is your employee (including casual employees or "day labor), and not an independent contractor, then he/she is a covered Employee. (O.C.G.A. § 34-9-1(3)).

a. Does not apply to legitimate independent contractors. (O.C.G.A. § 34-9-2(e)(1-3)).

b. Corporate officers may "opt out" of coverage as Employee. (O.C.G.A. § 34-9-2.1).

c. Partners and sole proprietors must "opt in" to be entitled to workers’ compensation benefits. (O.C.G.A. § 34-9-2.2).

3. Statutory employment -- Subcontractors’ employees (not the subcontractor himself unless he has "opted in" under his own coverage) may be covered employees if engaged in same subject matter of contract as your company and if the injury occurs on premises controlled by you or on which you are working (O.C.G.A. § 34-9-8).

a. "Premises" of employment may include public roadways if the work involves transportation;
b. "Premises" would not include subcontractor’s own shop.

C. Evaluating Compensability

1. Notice -- Did Employee/Claimant provide actual notice or should Employer have known that a compensable injury or accident occurred (constructive notice)?

2. Does Employer agree that injury arose out of and in the course of Employee/Claimant’s employment with that employer?

3. Is there any reason why income benefits and medical should not be paid?
a. The Employee/Claimant failed drug test. (O.C.G.A. § 34-9-17);
b. The Employee/Claimant was Injured while involved in horseplay or fight unrelated to work. (O.C.G.A. § 34-9-1);
c. The Employee/Claimant made a significant misrepresentation of pre-injury condition. (e.g., lying about prior back injuries and this claim is for a back injury);
d. The Employee/Claimant was going to or from work in personal vehicle when accident occurred;
e. Injury was personal to Employee/Claimant (idiopathic – e.g., employee fainted and fainting was not caused by work strain or injury made worse by work conditions). (O.C.G.A. § 34-9-1(4)).

4. Repetitive motion injuries are compensable under the Georgia Workers’ Compensation Act and are treated as continuous trauma injuries. Date of accident can be either the date the Employee/Claimant seeks medical treatment or the first date of disability. This rule is primarily applicable in carpal tunnel and tendonitis type claims.

5. Occupational disease -- A disease which arises from exposure at work In order to be entitled to workers’ compensation benefits, the Employee/Claimant must prove the following pursuant to O.C.G.A. § 34-9-280:

a. Direct causal connection between the Employee/Claimant’s work activities and the claimed disease;
b. The disease in question must follow as natural exposure as part of Employee/Claimant’s work;
c. The claimed disease is not something Employee/Claimant would have received substantial exposure to outside of work;
d. The general public is not exposed to the claimed disease as an ordinary disease of life; and
e. The disease in question has its origins at Employee/Claimant’s work.

6. Hernia -- The Employee/Claimant must prove all of the following (O.C.G.A. § 34-9-266):
a. Sudden injury resulting in hernia;
b. Hernia appeared suddenly;
c. Hernia was accompanied by pain;
d. Hernia Immediately followed accident;
e. Hernia did not exist before accident.

7. Psychiatric claims -- Must accompany a physical injury. No "stress" claims.

D. Payment of Income benefits
1. Pay income benefits within twenty-one (21) days and file WC-1 with subsection "B" completed (or WC-2) within twenty-one (21) days (O.C.G.A. § 34-9-221(b)). 

2. Amount of compensation -- 2/3 of average weekly wage up to maximum amounts:
a. Temporary total -- if totally disabled;
b. Temporary partial -- if partially disabled (compare pre-injury wage with post-injury wage and pay 2/3 of difference up to maximum - currently $500.00).

3. Calculating average weekly wage -- The Employer must provide information as soon as possible on gross wages, including tips and other benefits.
a. Thirteen (13) weeks of wages immediately preceding injury (averaged out then multiplied by 2/3 and compared to maximum). (O.C.G.A. § 34-9-260(1)).
b. If Employee/Claimant did not work substantially the whole of thirteen (13) weeks, is there a similar employee who did so (i.e., someone doing the same job and earning same wage rate)? If so, use similar employee wages to determine average weekly wage. (O.C.G.A. § 34-9-260(2)).
c. If wages for a similarly situated employee are unavailable, use contract rate (hours per week employee was hired for multiplied by hourly rate). (O.C.G.A. § 34-9-260(3)). (Note: This is assumed to be 40 hours unless contrary appears. Board Rule 260).

E. Denying claim

1. Insurer files form WC-1 subsection "C" or WC-3 with State Board of Workers’ Compensation stating reasons why income benefits and/or medical will not be paid. (O.C.G.A. § 34-9-221(d)).

 2. Medical only claims -- Where no income benefits have been paid, claim has not been accepted as compensable. Payment of medical here can be considered a gratuity.

 3. Changing your mind -- If income benefits are being paid, insurer can controvert within sixty (60) days of first income benefits payment. Must first pay all benefits due before controvert. May deny claim after paying more than sixty (60) days only if denial is based upon newly discovered evidence. (O.C.G.A. § 34-9-221(h)).

F. Payment of Medical

1. Employer/Insurer are liable for medical costs for all procedures designed to effect a cure, provide relief or restore the Employee/Claimant to gainful employment. (O.C.G.A. § 34-9-200(a)).

2. Who treats the employee -- Employer must maintain a list of physicians (Panel of Physicians) at work in a place accessible to employees. (O.C.G.A. § 34-9-201(b)).
a. List must contain:
    1. One orthopedist;
    2. One minority (of any speciality and can be orthopedist);
    3. No more than two (2) industrial clinics;
    4. Must have at least six (6) different groups. (physicians practicing as part of the same firm or practice group count as one)
    5. Hospitals cannot be an authorized treating physician and should be used only in emergency situations. (O.C.G.A. § 34-9-201(b)(1)).

b. Instead of Standard Panel of Physicians, an Employer can utilize the following other Panel of Physician forms:
    1. Workers’ Compensation Managed Care Organization (WC/MCO) but must post P3 Panel of Physicians advising Employees that they are covered by WC/MCO. (O.C.G.A. § 34-9-201(b)(3));
   2. Conformed Panel of Physicians -- list of at least ten (10) separate medical providers or groups of providers. (O.C.G.A. § 34-9-201(b)(2)).

c. Advising employees of panel
   1. Employer must make sure that Employee/Claimants understand Panel of Physicians; and
   2. Employee/Claimants are given appropriate assistance in contacting medical provider or physician. (O.C.G.A. § 34-9-201(c)).

d. Utilizing Panel of Physicians:
   1. Make sure to instruct and educate employees regarding use and function of Panel of Physicians when hired, periodically before and injury and whenever an alleged injury is reported to the Employer;
   2. Allow Employee/Claimant to choose any medical provider from Panel of Physicians. Let the Employee/Claimant make the choice regarding treating physician. Do not direct the Employee/Claimant to a particular provider or make this choice for him or her.
   3. If necessary, help arrange or take Employee/Claimant to physician;
   4. Advise Employee/Claimant that expenses incurred with physicians not on the Panel of Physicians will not be paid by the Employer/Insurer.
    5. Advise Employee/Claimant to go to hospital/medical center in an emergency. (This usually is an issue when an accident occurs on a late night shift. Further instruct the Employee/Claimant that once the "emergency" is over, he/she must return to an authorized panel physician;
   6. If Employee/Claimant does not like the first physician, he chose from the Panel of Physicians, he can choose another one on the Panel. All other changes must be approved by the Employer/Insurer or ordered by the State Board of Workers’ Compensation;
   7. Primary Authorized Treating Physicians may arrange for referral to another physician or provider for specialized care (i.e. Authorized Referral); however, this authorized referral physician (one who receives referral) may not arrange for other referrals. The Employer/Insurer are further not responsible for expenses incurred by the Employee/Claimant with physicians other than the Primary Authorized Treating Physician and his referrals.

(Note: recommend using a written acknowledgment form, signed by Employee/Claimant and placed in personnel file.)

3. Bill of Rights -- Workers’ Compensation bill of rights must be posted to explain rights and responsibilities of Employer and Employee/Claimant. (O.C.G.A. § 34-9-81.1).

e. Timing for payment of medical - Medical bills must be paid by Employer/Insurer within 30 days - Medical provider must provide, free of charge, copy of record, office note, admission summary, discharge summary, or diagnostic treatment results (any record supporting the bill) along with the WC20, UB92 or HCFA 1500 form.

f. Mileage Reimbursement - Paid to the Employee/Claimant upon submission of mileage showing date incurred, medical provider seen and amount of round-trip miles. Must be paid by Employer/Insurer within 30 days at $.28 per mile.

G. Suspension of Income Benefits

1. Actual return to work -- Employer/Insurer may suspend immediately upon return to work.
    a. No restrictions -- If Employee/Claimant has no restrictions, no temporary total or temporary partial benefits are due;
   b. Restrictions -- Compare pre-injury average weekly wage with post-return to work wages and pay 2/3 of difference up to maximum Temporary Partial Disability Benefits rate. No benefits are owed to the Employee/Claimant if he/she returns to work with medical restrictions but at his/her pre-injury average weekly wage rate of higher.

2. Release to return to work without restrictions and without actual return to work.
   a. Insurer files form WC-2 with State Board of Workers’ Compensation (attaching normal duty release from authorized treating physician). (Board Rule 221(i)(4)).
   b. Insurer pays additional ten (10) days of benefits from date WC-2 was filed with the Board and notice was provided to the Employee/Claimant regarding suspension of benefits. (Rule 221(1)(1)).

3. Release to return to work with restrictions (O.C.G.A. § 34-9-221; 34-9-240).
   a. No automatic suspension of benefits;
   b. Employer provides suitable light duty work to Employee/Claimant (restricted duty employment);

       1. Provide job description to treating physician for approval. (Employer/Insurer or their Counsel must send a copy of the job description to the Employee/Claimant at same time it is sent to treating physician);

      2. If job description is approved by Employee/Claimant’s authorized treating physician, offer job to Employee/Claimant by using form WC-240.

4. WC-240 Return to Work Offer (O.C.G.A. § 34-9-240)
   a. Serve WC-240 with job description and authorized treating physicians approval attached to Employee/Claimant and his Counsel at least ten (10) days before return to work date;
   b. File copy of WC-240 to State Board of Workers’ Compensation;
   c. Refusal of Claimant to Return to Work -- If Employee/Claimant does not return to work on date and time shown on WC-240, suspend income benefits by filing WC-2 (with WC-240 attached) with State Board of Workers’ Compensation;
   d. Attempt by Claimant to Return to Work -- Employee/Claimant may try to perform light duty job for up to fifteen (15) business days to see if suitable. If, for any reason, employee does not perform job position for fifteen (15) days, the Insurer must recommence payment of appropriate income benefits to Employee/Claimant;

    e. Insincere Effort by Claimant to Perform Light Duty Work -- After recommencing payment of appropriate income benefits to Employee/Claimant, the Employer/Insurer may request a hearing to suspend Employee/Claimant’s benefits.

   f. Illegal Aliens - If Employee/Claimant is already receiving income benefits, use WC240 to offer Employee/Claimant’s job description approved by the treating physician and require the Employee/Claimant to prove lawful employability status prior to allowing him/her to return to work with the Employer. The Employer/Insurer may unilaterally suspend payment of income benefits per the WC240 when the Employee/Claimant cannot verify legal eligibility to work in U.S.

Permanent Disability (Impairment) Ratings and Payment of Permanent Partial Disability (PPD) Benefits

(Sometimes referred to as "impairment rating").

Based upon reading given by Authorized Treating Physician in accordance with current AMA Guidelines. Dollar value based upon formula:

Number of weeks shown in 34-9-263 x % rating = Number of weeks PPD is to be paid.

Number of weeks to be paid x TTD rate =Total PPD entitlement.

Number of Maximum Weeks Per Body Part Loss:

Body Part Maximum Weeks Body Part Maximum Weeks
Arm 225                                                             
Leg 225
Hand 160
Great Toe 30
Any Toe other than the great toe 20
Foot 135
Loss of hearing, traumatic One ear 75
Both ears 150
Thumb 60
Middle Finger 35
Ring Finger 30
Index Finger 40
Little Finger 25
Loss of vision of one eye 150
Disability to the body as a whole 300

1. A Permanent Impairment Rating is based upon permanent impairment from injury.

2. Permanent Impairment Rating must be issued/approved by authorized treating physician for the Employee/Claimant based upon American Medical Associations’ Guide to Permanent Impairment, 5th Edition. (O.C.G.A. § 34-9-263(d)).

3. Formula for payments -- Percentage rating is multiplied by number of weeks provided in O.C.G.A. § 34-9-263 (see chart below); result is the number of weeks PPD benefits are to be paid to Employee/Claimant. The Employer/Insurer are then required to pay PPD benefits at his Temporary Total Disability Benefits rate for the number of week specified. These PPD benefits can be paid over time or in lump sum according to Employer/Insurer’s desire on the subject.

I. Settlements

 1. Permitted but not required by State Board of Workers’ Compensation.
 2. Must pay Employee/Claimant more than that to which he/she is already entitled.
 3. May close medical after a certain, defined period after settlement approval or, in limited circumstances, upon approval of settlement.
 4. The Employer may require employee to resign as a condition of settlement, but the agreement to resign cannot be contained in settlement agreement and stipulation submitted to Board for approval.J. Board Forms (of significance to employers) -- The form number is located at the bottom of the page, centered and in bold type.

1. WC-1 -- First Report of Injury
a. Must be completed by Employer immediately upon knowledge of injury (Rule 61(b)(1));
b. Must be filed within twenty-one (21) days of disability (Rule 61(b)(1);
c. Form itself is not evidence. May not be used as evidence at any hearing.

2. WC-6 -- Wage Statement -- Used in calculating average weekly wage for payment of TTD, TPD and PPD.
a. Recommend completion on every claim;
b. Reflects Employee/Claimant’s Gross wages for thirteen (13) weeks prior to injury.

3. WC-14 -- Notice of Claim/Request for Hearing
a. If "Notice of Claim" box is checked, no action is required;
If "Request for Hearing" box is checked, the Employer should immediately notify the Insurer. The Employee/Claimant has requested a hearing on the issues listed on the back of the form. This form is also commonly accompanied with written discovery including interrogatories, requests for production and requests for admissions. Provide these items to the Insurer and your legal counsel as soon as possible.

4. WCP1, P2, P3 -- Panel of Physicians

a. Form is generally provided to the Employer by the Insurer;
b. Post in a conspicuous location (i.e., Employee break room, next to time clock, etc.);
c. Tell Employee/Claimant about panel and, if possible, have him/her sign acknowledgment form.

5. WC-102 -- Request for Production of Documents
a. Unlike other written discovery, a hearing is not required for a party to file and serve a WC-102 on opposing party.
b. Must provide documents requested within thirty (30) days or likely be penalized with assessed attorney’s fees;
c. If Insurer is to respond to WC-102, the Employer must documents pertinent to the items requested in the WC-102 to the Insurer as soon as possible.

6. WC-102(g) -- Motion Form
a. Object or Purpose of motion will be listed on form;
b. A party must respond to any motion filed on WC-102d within fifteen (15) days of date printed on certificate of service;
c. An Employer must advise Insurer and/or legal counsel of receipt of motion immediately upon receipt.

7. WC-200(a) -- Change of Physicians by Consent -- use when Employer and Insurer have agreed with Employee/Claimant to effect a change in medical treatment to a provider not listed on the Panel of Physicians or to reflect a change to a different provider on the panel once the Claimant has exercised his one "free" physician change pursuant to O.C.G.A. § 34-9-201.  (Beware of the WC200a coming from an attorney suggesting a change of physicians that you've not previously discussed as this is a common tactic)

8. WC-200(b) -- Request for Change in Authorized Treating Physicians
a. A party must respond to any request for change in treating physician on a WC-200(b) within fifteen (15) days of date printed on certificate of service;
b. An Employer must advise Insurer and legal counsel of receipt of WC-200(b) immediately upon receipt of same.

9. WC-240 -- Light Duty Return to Work Offer (See above-listed previous discussion)

10. WC-243 -- Reduction in Benefits (O.C.G.A. § 34-9-243)
a. Used to take credit for money paid by salary continuation plan, unemployment or disability plan;
b. Advise Insurer of other income replacement payments made;
c. Determine percentage of premium paid by Employer for each applicable plan;
d. Multiply percentage of premium paid by employer against weekly benefit received under plan;
e. Determine period of payment;
f. Take credit for amount paid weekly against amounts due weekly for TTD or TPD (cannot take credit for these wage replacement against PPD rating that might be due); and
g. File form with State Board of Workers’ Compensation at least ten (10) days prior to any hearing.

11. Notice of Hearing -- The Employer must immediately notify Insurer and retain counsel within twenty-one (21) days of hearing notice being issued by State Board of Workers’ Compensation. (Board Rule 102(1)(3).

"Skedsvold & White
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