In the melee that was the 1992 legislative session of the Georgia General Assembly, the legislature grappled with what the business community considered as workers' compensation expense run amok. In addition to the usual concern over attorney's fees being paid to the employees' attorneys, and the ever increasing costs of medical expense, employers and insurers were convinced, and in some cases rightfully so, that the expense for income benefits was out of control and needed to be brought back to some level of sanity. Most especially were those cases in which the employee was given light duty work restrictions and yet continued receiving temporary total disability benefits pursuant to O.C.G.A. § 34-9-261. The argument advanced was that, if an employee was only partially disabled, then the employee should only receive partial disability benefits. The employers at that time tended to ignore their own responsibility, in that their decisions played a part in the perpetuation of the employee's TTD status.
As the burden of proof in Georgia workers' compensation is generally upon the individual/party wishing to change the status quo, employers paying TTD benefits to an injured worker are required to either provide suitable light duty employment or pay disability benefits. In 1992, employers had no mechanism for forcing an employee to return to work, and employees were reluctant to return to work for fear that their income benefits would not be recommenced if the employee could not perform their job duties after a return to work. Remember, in 1992, the WC-240 procedure was not in existence and would not be available to employers for another two years. Therefore, the mechanism for encouraging an employee to return to work was simply the amount of money to be paid to them during the employee's convalescence from the injury. Thus, O.C.G.A. § 34-9-104(a)(2) was born.
Briefly stated, the purpose of the new code section was to advise employees that their authorized treating physician had released them to return to work with restrictions and that 52 weeks hence total disability benefits would stop and partial disability benefits would commence. The mechanism of accomplishing that goal was the WC-104 form.
Employers and insurers have grappled with the precise meaning of 34-9-104(a)(2), the logistics of accomplishing this goal, as well as the practical effect of the statute itself. The first difficulty encountered by the employer was proper use of the WC-104 form in notifying the employee of that light duty release to return to work. It seems superfluous that the employer would have to notify the employee that he has been released to return to work, as most employees would implicitly know that based upon their own conversations with the authorized treating physician. The purpose of the notice, however, was less to notify them that they could perform work at least in some capacity than it was to notify them of the consequences of that status at some point in the future.
Notice to the employee, therefore, was the first battleground and is often the first resort of the employee's attorney in attempting to circumvent the applicability of the WC-104 form which has been served. The code section simply provides that the employee must be notified within 60 days of that employee's release to return to work with restrictions. Note, the code section does not require that the employee actually be seen and evaluated by the authorized treating physician within 60 days, just that the notice be given within 60 days of the light duty release. In practical effect, it often amounts to the same thing, but the employee's refusal to return for medical treatment/evaluation has often served as a barrier to invoking O.C.G.A. § 34-9-104(a)(2). Employers and insurers, therefore, resorted to contacting medical providers, either in person or in writing, and inquiring of the doctor whether the employee could perform limited/restricted/modified duty work. Within 60 days from either the date of the office visit or the date that the physician affixes his signature to a questionnaire confirming the employee's ability to perform modified duty work, the WC-104 form should be completed and served on the employee.
Under previous Board policy, the WC-104 form should have been served, along with a copy of the modified duty release, on the employee and the employee's attorney, and filed with the State Board of Workers' Compensation. The State Board, beginning July 1, 2006, decided that it no longer wanted to receive and deal with the massive number of WC-104 forms which would come its way if the form were effectively issued, and decided, therefore, that the WC-104 form would not need to be filed with the State Board of Workers' Compensation until its conversion date, and then would need to be filed in coordination with the WC-2 form suspending temporary total and commencing temporary partial disability benefits. Previously, ;the filing of the WC-104 form with the State Board provided a date-stamp and thus proof that the WC-104 form had actually been filed on a timely basis. Employers and insurers are now left with the options of (a) trusting that the employee will acknowledge receipt of the WC-104 form or (b) providing for some other method of establishing that the WC-104 form was completed and served within 60 days of a light duty release. In the context of most claims offices and litigation practices, relying on option (a) would seem to be a fool's errand. Option (b), creating a paper trail and providing a mechanism for proof, would seem to be more prudent in light of the stakes involved. We would recommend utilization of one or more of the following:
1. Faxing the WC-104 form and the accompanying medical to the claimant and his counsel, along with a letter indicating that the form was being served that day via first-class mail.
2. Serving the form via certified mail with return receipt requested on both the claimant and his counsel, and sending copies via regular first-class mail, along with a letter indicating that the form was being served in both these ways.
3. Service via overnight delivery to counsel for the claimant and to the claimant directly.
Option No. 2 above includes certified mail so that a signature can be obtained which will establish proof, when the green "return receipt" is maintained in the file, that the employee actually received the document. Individuals, not just workers' compensation claimants, frequently refuse to sign for certified mail or simply fail to pick it up at their local post office when notification is given. The mail is, therefore, very often returned as unclaimed. Serving the form with a courtesy copy to the claimant via regular first-class mail provides an additional layer of proof inasmuch as the unclaimed certified mail sent to the same address as the unreturned regular first-class mail would establish that notice was in fact sent and received by the employee.
Another strategy for effecting service is to send the WC-104 form and light duty release from the ATP along with the employee's weekly indemnity check that is mailed during the time in which the WC-104 form is to be served. Mailing the check in the same envelope would provide sufficient proof that the form was received.
The best practice for a claims office, which is often the scene of much paperwork and turnover of personnel, would be to have the adjuster complete a form affidavit, and have that affidavit notarized and placed in the file, that the WC-104 was served on the employee on a date certain via a specified method. That contemporaneous recording of an action by the adjuster would then be reliable evidence in the future of the occurrence of the event, and would likely be convincing to an administrative law judge when the issue of notice came before the court for adjudication. Completing contemporaneous affidavits regarding the employee's receipt of the WC-104 form and release and any conversations with the employee regarding the WC-104/release/etc., might also be helpful, but possibly overtaxing in the context of a claims adjuster with a high claims count and other deadlines to be met.
Credit must be given to the claimants for their attempts to circumvent the WC-104 form. The first such attempt was a rather creative argument in which the injured worker's attorney asserted that the WC-104 form must be served within 60 days of the FIRST release to return to work from the authorized treating physician. The argument asserted by the employee's attorney would in effect have provided for a statute of limitations on the employer's ability to use the WC-104 form and limited the applicability of that form to the FIRST release to return to work from the ATP. Subsequent releases would not serve to revive the ability of the employer to use the WC-104 form. Fortunately, the State Board correctly read O.C.G.A. § 34-9-104(a)(2) to provide not for a statute of limitations but instead for notice to the employee of the date on which income benefits would be converted.
The conversion of income benefits from temporary total to temporary partial has also provided for a source of confusion, litigation, and creativity. The temporary total disability rate is easily enough established based upon the employee's pre-injury average weekly wage. That temporary total disability rate, once set, serves as the basis not only for the temporary total disability (TTD) rate but also for the permanent partial disability (PPD) rate when and if an impairment rating is given. The temporary partial disability rate (TPD) is not set, however, except by statutory maximum. Remember, the maximum TTD/TPD rates are set based on the date of the employee's injury and not upon the time in which those benefits are paid. Not long after 34-9-104(a)(2) was enacted, employers and insurers noticed that the practical effect of the conversion was muted when it became clear to the employers and insurers that many injured workers received less in temporary total disability benefits than the maximum of temporary partial disability benefits provided for under the statute. Employers and insurers were thus presented with a logical inconsistency in that the WC-104 form completed based on the maximum TPD rate might serve less as a disincentive to the employee to refrain from returning to work than it would be a disincentive to the employer from serving the underlying form. Employers in these cases decided that a measure of creativity on their own part was called for. Thus was born the idea of the "imputed wage". The general idea was that the employee who could perform some light duty work could be assumed to have the ability to earn a certain amount of wages, for example minimum wage. The employer's argument would be that, if the employee can perform light duty work, then a light duty job available to him, even at minimum wage and full-time hours, would provide a basic return to work wage on which a TPD calculation could be made when compared with the pre-injury wage of that employee. Just as with the employees' argument regarding the 60 day notification, the employers' creativity had no basis in law and was summarily rejected.
For that reason, an additional section was inserted into O.C.G.A. § 34-9-104(a) to make clear the procedure for conversion of temporary total to temporary partial disability benefits. That section, 34-9-104(a)(3)(1) and (2), provides explicit instructions as to how the conversion is to take place and at what level. In these cases, the employee's "return to work wage" is assumed to be $0, and the employees can either be paid at the maximum temporary partial rate (when the employee is receiving the maximum temporary total rate) or keep the same TTD rate previously received but not to exceed the maximum TPD rate. That simple amendment to the change of condition statute makes clear that the employer can still rely upon the WC-104 and will not be penalized in so doing, and that the employee still has a consequence when he is released to return to work with restrictions. The consequence to the employee of having his benefits paid for temporary partial disability, even at the same rate as for temporary total, is that the employee is not entitled to temporary partial except for 350 weeks as calculated from the date of injury.
The employee's entitlement to temporary total disability benefits is limited to 400 weeks as calculated from the date of the injury; whereas the employee's entitlement to temporary partial disability benefits is limited to 350 weeks from the date of injury. Note that this is not 400 weeks of TTD or 350 weeks of TPD actually paid, but a period of eligibility as calculated from the date of injury. The employer knows, therefore, on the very date of an occurrence, when the employee's benefits eligibility will expire. Therefore, paying TPD benefits reduces by almost one year the amount of benefits that an employee could receive if that employee fails or refuses to return to work.
The next and biggest battleground concerns the applicability of the WC-104 form to catastrophic cases. O.C.G.A. § 34-9-104(a)(2) provides that the form and the conversion procedures is applicable only to those cases which are not catastrophic. If the injury has already been deemed to be catastrophic pursuant to 34-9-200.1(g)(1)-(6), then the employer cannot convert benefits using the WC-104 form. This does not mean that the WC-104 form should not be served in cases where the claim is either already catastrophic or may be expected to become catastrophic. The State Board of Workers' Compensation recognizes the possibility that an injury once considered catastrophic could have that designation removed, although the chance is oftentimes remote. Nonetheless, employers should not be dissuaded from using the form based upon the employee's threat of pursuing a catastrophic designation. The employers should in every instance file a WC-104 form as soon as is possible, hoping that a return to work is possible, and that the WC-104 form would then be unnecessary.
Quite possibly the most contentious area of the WC-140 conversion practice involves the date on which the conversion is to take place. On this front, there are a number of concerns. The WC-104 form explicitly advises the employee that, pursuant to the statute, he is being released to return to work with restrictions and that he will receive no more than 52 consecutive weeks or 78 aggregate weeks of temporary total disability benefits during the applicability of light duty restrictions. First and foremost, if we assume a 52 consecutive week payment of TTD benefits and a conversion after the 52nd week, the 52 weeks is calculated from the date of the light duty release. Assuming that the WC-104 form was served within 60 days of the light duty release, the date of that release, not the date of the form, is the date on which the conversion would take place.
Another part of this contentious process involves a situation in which the employee has been released to return to work with restrictions and is subsequently taken out of work by the authorized treating physician for some period of time. When the employee is thus taken out of work, the 52 consecutive week limit would no longer apply, and the employer then drops back to 78 aggregate weeks of income benefits. At this point, strategy and gamesmanship apply on both sides of the table. The employee, if taken out of work even one day, will argue that now 78 aggregate week limit applies and that he is in essence entitled to TTD benefits for a year and a half, or 18 months. The employer needs to maximize its opportunity to minimize the exposure for income benefits, watching carefully the date on which the employee is returned to work.
The common assumption, admittedly one based upon a straightforward reading of 34-9-102(a) has always held that the time on TTD benefits after a WC-104 form has been filed was treated similar to a stopwatch. Once a WC-104 form was served confirming a light duty release to return to work, the stopwatch starts to run effective the date of the light duty release. That stopwatch will continue to run for 52 consecutive weeks, at which time income benefits would be suspended. If, during the interim between the service of the WC-104 and conversion of the TTD benefits to TPD benefits, the employee is taken out of work, then the stopwatch continues to run not for 52 consecutive weeks but for 78 aggregate weeks.
Recently, however, the State Board's Appellate Division has made clear that, while the same time frames continue to apply, another WC-104 would need to be filed with a recalculation of when income benefits would be converted from TTD to TPD. At this point, a new WC-104 must be served with the recalculation presumably for the 78 aggregate weeks of temporary total disability benefits. Depending upon the situation and time out of work, the employer/insurer may find it advisable to serve two new WC-104 forms, one using a 78 aggregate week and a second using a 52 consecutive week total. While this might be confusing to the employee, it does make clear that the employer/insurer will seek to convert temporary total to temporary partial at the earliest possible date and that continued games by the employee seeking to be excused from modified duty will not profit the employee by making him forever able to circumvent the TTD to TPD conversion. It is conceivable that, after serving multiple WC-104 forms, the 78 aggregate week total could trigger the conversion earlier than the 52 consecutive weeks anticipated by the statute. We recommend, therefore, that in this unique situation where the employee is first subject to a WC-104 and is later taken out of work, that two WC-104 forms be served on the employee and his counsel.
It is important to note that the WC-104 procedure only applies to release from the authorized treating physician. Independent medical evaluations should not be used in support of a WC-104 form, and physicians receiving referrals from the authorized treating physician should be queried for their opinion on a light duty release with confirmation being obtained form the authorized treating physician, to ensure that the employee cannot mount a successful challenge to the validity of the underlying WC-104 form.
"Skedsvold & White
Join us on Facebook
"Skedsvold & White
Join us on Facebook
Stay informed about the right answers to Worker's Comp
See the new Compworx Return-to-Work System
No comments:
Post a Comment