State News : Georgia

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.


Georgia

LEVY SIBLEY FOREMAN & SPEIR, LLC

  877-284-4034

Our Legislative Session for 2024-2025 has kicked off and I am pleased to report that, at this time, there are no proposed changes that currently impact our WC system. In Georgia, our Advisory Council is generally the body that presents any proposed uniform changes to the Legislature but this year there are no changes being presented. Of course, each session presents the possibility for surprises, and we will keep you informed of those. For now, however, it appears that smooth sailing lies ahead from Georgia’s employers regarding Statutory changes.

Several dates have been released by the State Board that would be of interest to claims specialists and employers alike. First, the 2024 Annual Educational Conference will take place August 26-28, 2024, at the Hotel at Avalon in Alpharetta, Georgia. Additional information will soon be available on the Board website at www.sbwc.georgia.gov. Second, Georgia celebrates the 25th anniversary of our CWCP (Certified Worker’s Compensation Specialist) program! The CWCP Certification Program is a comprehensive claims management training course that was developed by the Chairman’s Advisory Council at the Georgia State Board of Workers’ Compensation. The Program is designed to educate participants on the fundamentals of workers’ compensation, and then continue to reinforce and build upon those fundamentals through continued education to ensure that each CWCP Certified Professional has a thorough understanding of Georgia’s Workers’ Compensation system. The CWCP Program consists of a Certification Course and a Re-Certification Course. The CWCP Certification Course is a pre-requisite for a Georgia Workers’ Compensation Adjuster’s License. More information can be found at www.CWCP.net

2023 Legislative Session Overview 

Nathan C. Levy, Partner

Levy, Sibley, Foreman & Speir, LLC 

The Legislative session for 2023 has ended and there are only a few notable changes that we wanted to share with you. Be advised that per the normal course, these changes go into effect on July 1, 2023, and will apply to dates of accident from that date forward. Many of you might recall our newsletter from March 21, 2023, wherein we advised of possible increases in indemnity caps, a change in the language associated with dependency and the increase in the maximum recoverable by a surviving spouse with no dependents. HB 480 was passed and ultimately remained the only impactful legislation for Workers’ Compensation that emerged from the session. 

HB 480 specifically addresses: 

1. A revision to Code Section 34-9-13(e) that formerly allowed for the dependency of a surviving spouse to terminate with remarriage of upon a finding of cohabitation in a meretricious relationship with this latter language removed entirely. Replacing it will be a cessation of dependency benefits upon determination by the board of cohabitation continuously and openly in a relationship similar or akin to marriage that includes support of economic value to the Claimant Dependent. No consideration shall be given to payments made exclusively for board and lodging or to any payment for financial support for a period of less than three months. 

2. A revision to Code Section 34-9-261 increasing the statutory maximum for TTD to $800.00 per week (not less than $50.00 per week) for dates of accident on or after July 1, 2023. This is an increase from $725.00 per week. 

3. A revision to Code Section 34-9-262 increasing the statutory maximum for TPD to $533.00 per week up from $483.00 per week. 

4. A revision to Code Section 34-9-265 increasing the maximum amount paid to a surviving spouse with no dependent from $290,000.00 to $320,000.00. 

Moreover, as we stated in March, with these changes will come some new challenges related to attempts to suspend spousal dependency benefits in circumstances where there is cohabitation but not remarriage and what must be done from an accounting perspective to bear the employer’s burden. At first glance, the evidence appears to require a full forensic accounting to show a true commingling of household dollars in a manner that would be expected to appear with married couples. This new standard is a much greater hurdle to overcome than merely providing evidence that a spouse/dependent is actively living with someone else and holding themselves out as partners. One can expect an increase in litigation in this area until some judicial guidelines are established. 

Certainly, the continued increases in TTD and TPD should come with little surprise as employers and insurers are becoming very familiar with cap increases going into effect every July 1.  

From a Board Rule perspective, there are several modifications that also go into effect on July 1st. The below changes apply to all claims, regardless of the date of accident. 

·     Board Rule 200.2 clarifies the specific Certifications and Licenses that must be maintained in order to maintain status with the Board as a “Qualified Case Manager”. The Board rule does clarify that prior to initially contacting a treating physician, a qualified medical case manager working without consent of the employee (or counsel) must provide all parties with written notice of being retained by the employer/insurer. Qualified medical case managers must also provide copies of all written documents received from the treating physician to all parties and attorneys. 

·     Board Rule 100(i) and 102 (E)(1) expand professional conduct to include a general prohibition by any person in any claim to exhibit unprofessional, discourteous, or disruptive conduct and that certainly extends to the courtroom. 

·     Board Rule 203(e) also increases the rate of mileage from .40 to .45 cents per mile, and, finally, 

·     Board Rule 203 in relation to Peer Reviews of medical billing practices, gives the decision of the “peer review organization” the final say in ordering a lowering or increasing of any bill submitted for review and requires/allows the employer to remit payment or take credit based upon that outcome.  

As you can see, the session did bring about the expected changes and with very little surprise. In the end, that is the path that Georgia’s employers and insurers certainly prefer. As always, if you have any questions regarding these issues or would like clarification on any point, do not hesitate to contact us.

 

2023 Georgia Legislative Session Starting to Take Shape

 Nathan Levy

Partner, Levy, Sibley, Foreman & Speir, LLC

As you know, workers’ compensation is always in a state of change and it is incumbent on employers and insurers to keep apprised of shifts in new caselaw, Board Rules and Statutes.  In varying degrees, our Legislature seems to bring about some modifications to 34-9 annually and 2023 looks to be no exception. Essentially, there are two Bills; HB 480 and SB 91, that will likely impact Workers’ Compensation.

 

SB 91 essentially extends the ongoing life of the Subsequent Injury Trust Fund for another two years. This is an event that will continue until the open claims dwindle to an acceptable level of handling. Beyond that, SB 91 has no further effect.

 

HB 480 does have some material changes that should impact all of us. The Bill proposes;

 

1. A revision to Code Section 34-9-13(e) that formerly allowed for the dependency of a surviving spouse to terminate with remarriage of upon a finding of cohabitation in a meretricious relationship with this latter language removed entirely. Replacing it will be a cessation of dependency benefits upon determination by the board of cohabitation continuously and openly in a relationship similar or akin to marriage that includes support of economic value to the Claimant Dependent. No consideration shall be given to payments made exclusively for board and lodging or to any payment for financial support for a period of less than three months.

2. A revision to Code Section 34-9-261 increasing the statutory maximum for TTD to $800.00 per week (nor less than $50.00 per week) for dates of accident on or after July 1, 2023. This is an increase from $725.00 per week.

3. A revision to Code Section 34-9-262 increasing the statutory maximum for TPD to $533.00 per week up from $483.00 per week.

4. A revision to Code Section 34-9-265 increasing the maximum amount paid to a surviving spouse with no dependent from $290,000.00 to $320,000.00.

       

The most thought provoking changes reference the new thresholds for suspending spousal dependency benefits in circumstances where there is cohabitation but not remarriage and what must be done from an accounting perspective to bear the employer’s burden. At first glance, the evidence appears to require a full forensic accounting to show a true commingling of household dollars in a manner that would be expected to appear with married couples. This new standard is a much greater hurdle to overcome than merely providing evidence that a spouse/dependent is actively living with someone else and holding themselves out as partners. One can expect an increase in litigation along this area until some judicial guidelines are established. 

 

Beyond that, these legislative changes bring about little effect or impact on our system. Certainly the continued increases in TTD and TPD in their regularity make those changes almost expected and with inflation and cost of living issues, come with little surprise. Be advised that Sine die is set for March 29th and change is always a possibility. As always, we will attempt to keep you informed of these proposed changes and any new information that impacts Georgia’s employers and insurers in the area of workers’ compensation.

This year’s legislative session brought about little substantive change in our code.  One anticipated change that has gone into effect are newly established caps for TTD, TPD, PPD and the maximums for Spousal dependency benefits where the surviving spouse is the sole primary beneficiary. The new established caps do apply only to dates of accident on and after July 1, 2022.

The new maximum rates for indemnity are as follows:

  1. TTD goes from a maximum of $675 per week to $725,

  2. TPD goes from a maximum of $450 per week to $483, and

  3. PPD goes from a maximum of $675 per week to $725 due to the above changes in TTD rates.

 Also effective July 1, 2022 is a change in the maximum benefit payable to a surviving spouse with no other dependents. This figure goes from a maximum cap of $270,000.00 to $290,000.00 for dates of accident on or after July 1.

Effective July 1, 2022, there were also slight modifications to Board Rules 203 and 205.  The Board approved a new peer review organization in 2021. Claims Eval is the Board’s approved peer review organization and reviews disputes between medical providers and employers and insurers regarding medical charges. Some changes were made to the process and procedures for filing for peer review.

A change was also made to the rule to clarify that all medical treatment, items, and services covered by O.C.G.A. §34-9-200 can be included in the PMT process.  This latter change will be very helpful to the already successful PMT program that allows for requests and denials of certain medical procedures, items and services be done on an expedited basis.

Another note worth mentioning is the firm position that our Board continues to take on proper filing of Board forms in active claims.  Adjusters and other claims handlers will be held to a high standards as it relates to required filings and, when the opportunity arises, our Administrative Law Judges remind the section of this point.  Attorney’s fees and civil penalties will continue to be assessed for non-compliance issues and we should all consider ourselves on notice.

Finally, On October 19, 2021, the first Georgia Workers’ Compensation Claim involving Covid-19 in the workplace was litigated.. The claim was brought by a widower whose deceased spouse worked as a records clerk for a county jail. The ALJ issue an Award finding that in this particular claim, Covid-19 was not a compensable injury or disease under the Georgia statute. Interestingly, the claimant’s counsel argued that Covid-19 was not an occupational disease but was rather an injury leading to disease and brought on by injurious exposure.  The employer’s defense revolved around the deceased’s potential community exposure, as evidenced by bank records, as well as the extensive measures taken by the County to prevent the spread of Covid-19.  Although the finding was in favor of the employer in this case,  the Award left open the possibility that certain jobs or positions might lend a different result, and that is important to remember, especially for our first responder and health care clients who may be facing similar claims.  

2021 has been a year of contrast in comparison to its predecessor.  Our Board did continue with limited and restricted business at the beginning of 2021 and as we all adjusted to the use of “zoom” for depositions and hearings, court events and proceedings again gained some badly needed momentum.  At present, in-person hearings have been reinstated with some continued restrictions and Zoom hearings and mediations have continued to play major roles in the handling of caseloads.  To their credit, the Georgia SBWC has done an admirable job in maintaining vital safety standards while remaining open.  Stunningly, claims between 2019 and 2020 were down only 3%, which is evidence of the efforts expended by all involved.  As of 2021, our new Chairmen Ben Vinson, reported that as of 2021, legal proceedings with hearings, mediations and PMT calls are all up over 30% and that there are no case backlogs to report internally.  Certainly, we expect for that trend to continue as we hopefully progress to a status quo similar to 2019.

 

              From a legislative and revised Board Rule changes perspective, there is nothing to report.  Although some proposals were reported, no new legislation emerged from the 2021 session that would impact our 34-9 statutes.  Board Rule changes were limited to revisions to very nominal and minimal issues that require no further comment here.  In sum, all smooth sailing to report on the legal front.

 

              2021 has also brought about little in the way of reported caselaw of interest.  In Baxter v. Tracie McCormick, 2021 WL 2701286 (July 1, 2021), the Georgia Court of Appeals provided further guidance on the Cap on Dependency benefits as referenced in O.C.G.A. 34-9-265.  In Baxter, the insurer suspended benefits due to reaching the cap of $150,000.00 in payout.  At the time of death, the deceased left a surviving spouse but no other minor children or other dependents.  Baxter argued that her mother-in-law was a partial dependent and that this status should invalidate the cap in that regard.  The Court of Appeals did not agree, finding that the mother-in-law was a partial dependent and could only receive dependency benefits if there were no persons wholly dependent.  Of course, this finding further confirmed the long-standing rule that partial dependents may only recover in the absence of those that are wholly dependent.

 

              In Sunbelt Plastic Extrusions Inc. et al. v. Paguia, A21A0867, Court of Appeals of Georgia (August 19, 2021), further guidance on the application of the change in condition two-year statute of limitations was provided.  In Sunbelt, the Claimant was paid TTD through November 29, 201 and filed a WC 14/Request for Catastrophic Designation on November 20, 2018.  The employer asserted a 34-9-104 Statute of limitations defense in that the last payment of TTD was “actually made” on November 15, 2016 and that the WC 14 was therefore filed after two years from that date.  This issue had been previously addressed by the Court of Appeals in finding that the critical date to be determined was when the last payment was ‘mailed’ to the recipient.  Unfortunately for the insurer, the evidence provided through adjuster’s testimony was not certain enough to prove by a preponderance of the evidence that the last payment was “actually made” on November 15, 2016.  It was the adjusters opinion that this was the date of mailing but further confirmed to lacking certainty of that fact.   Moreover, in denying the application of the Statute of Limitations, the Court of Appeals further affirmed the Board’s finding that the underlying claim was, in fact, Catastrophic.  The lesson for employers and insurers is to fully document the date that TTD payments are “actually made” with as much certainty as possible.

Unfortunately, this newsletter does not contain good news for Georgia’s employers and Insurers. The Supreme Court has dealt a final blow to the scheduled rest break defense, leaving it essentially ineffective absent the most narrow of circumstances.    

As is always the case, prepared employers are ever-adapting to changing conditions within our comp system and this ruling should cause us to rethink the manner in which we handle employee breaks and “free time”.  

Casey B. Foreman

Levy, Sibley, Foreman & Speir, LLC

cforeman@lsfslaw.com 

(866) 995-8663

UPDATE: The Families First Coronavirus Response Act for Employers

Nathan C. Levy - GEORGIA

Levy, Sibley, Foreman & Speir, LLC 

(866) 995-8663

www.lsfslaw.com 



Rayford H. Taylor
Of Counsel
Gilson Athans P.C.
980 Hammond Drive, Suite 800
Atlanta, Georgia 30328
770-512-0300 - Ext. 529
770-512-0070 - Fax
rtaylor@gilsonathans.com
www.gilsonathans.com

The Appellate Court found that the evidence supported the State Board

of Worker’s Compensation’s denial of benefits to the claimant

 

ABF Freight System, Inc. v. Presley

(Georgia Court of Appeals)

 

Employee not entitled to additional benefits because he could not establish he had sustained a “fictional new accident,” but rather had merely had a “change in condition.”

Summary

 

Employee had to prove right knee problems were a result of a fictional new injury, rather than a change in condition arising out of normal life.  He failed to prove a new injury, so not entitled to benefits.

 

Discussion

 

Mr. Presley worked for ABF Freight System, Inc. as a truck driver and dock worker.  He sustained a compensable injury to his right knee, had surgery, and received temporary total disability (“TTD”) benefits during his absence from work.  He later returned to work without restrictions or limitations and continued to perform his normal job duties.  However, his right knee pain worsened and he was diagnosed with arthritis in the knee and was advised that he would eventually need a right knee replacement.

 

Mr. Presley also sustained a compensable job-related injury to his left knee, had surgery and again ultimately returned to work without restrictions or limitations and resumed his normal duties.  His right knee pain continued to worsen following his left knee surgery.  He had apparently suffered a tear of the medial meniscus to his left knee but continued his normal job duties even as his right knee pain worsened.

 

After an additional year of continuing to work in his regular job duties following his left meniscal tear, the doctor informed Mr. Presley that a total right knee replacement was necessary.  Mr. Presley had the surgery and was placed on a “no work” status and sought payment of TTD benefits, arguing that he had sustained a fictional new injury.  ABF argued that it was a change in condition for the worse, and the right knee condition and it was not compensable.

 

Whether an employee suffers a fictional new injury or change in condition is a question of fact for determination by the administrative law judge (“ALJ”).  In this case, the ALJ denied benefits, finding that Mr. Presley did not suffer fictional new injury and that the two-year statute of limitation barred his claim since he had last received TTD benefits for his right knee more than years prior.  On appeal, the State Board adopted that decision.

 

The parties agreed that there was no singular specific incident creating an immediate need for Presley’s total right knee replacement.  Instead, the dispute was whether Presley’s total temporary disability arising from his right knee replacement should be characterized as a fictional new accident or a change in condition for the worse.

 

A fictional new injury, or aggravation of a pre-existing condition, occurs when a “claimant is injured on the job but continues to perform the duties of his employment until such time that he is forced to cease work because of the gradual worsening of his condition which was at least partly attributable to his physical activity in continuing work subsequent to his injury.” Central State Hospital v. James, 147 Ga. App. 308, 309, 248 S.E.2d 678 (Ga. App. 1978). 

 

A change in physical condition, on the other hand, occurs when a claimant sustains an injury and is awarded compensation during his period of disability.  Subsequent thereto, the employee returns to employment performing his normal duties or ordinary work.  Then as a result of the wear and tear, ordinary life and the activity connected with performing his normal duties and not because of any specific job-related incident, his condition gradually worsens to the point where he can no longer continue to perform his ordinary work. 

 

Ordinarily, the distinguishing feature that determines whether that disability is either “a change of condition” or a “fictional new accident” is the intervention of new circumstances.  Whether an employee suffers a fictional new accident or a change in condition is a question of fact to be determined by the ALJ.  In this case, the Appellate Court found that under the “any evidence rule” the findings of the State Board and the ALJ had to be affirmed.

 

________________________

 

ABOUT THE AUTHOR

 

The article was written by Rayford H. Taylor, Esq., Of Counsel to Gilson Athans P.C., a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and all other liability and commercial matters.  Mr. Taylor is admitted to practice law in Florida and Georgia and is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive.  Taylor and Gilson Athans are members of The National Workers’ Compensation Defense Network (NWCDN).  The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.