IMPORTANT DEADLINES AND POTENTIAL PENALTIES
IN GEORGIA WORKERS’ COMPENSATION LAW
Prepared By:
THE BERGQUIST LAW FIRM, LLC
DENIAL/CONTROVERTING CLAIMS
O.C.G.A. § 34-9-221(b):
The first payment of income benefits shall become due on the twenty-first day after the employer has knowledge of the injury or death, on which day all income benefits then due shall be paid. Thereafter, income benefits shall be due and payable in weekly installments … . Such weekly payments shall be considered to be paid when due when mailed from within the state of Georgia to the address specified by the employee or to the address of record according to the Board. Such weekly payments shall be considered to be paid when due when mailed from outside the state of Georgia no later than three days prior to the due date to the address specified by the employee or the address of record according to the Board.
O.C.G.A. § 34-9-221(d):
If the employer controverts the right to compensation, it shall file with the Board on or before the twenty-first day after knowledge of the alleged injury or death, a notice in accordance with the form prescribed by the Board stating that the right of compensation is controverted and stating the name of the claimant, the name of the employer, the date of the alleged injury or death, and the ground upon which the right to compensation is being controverted.
O.C.G.A. § 34-9-221(f):
If income benefits payable under the terms of an award (such as a Stipulation and Agreement), are not paid within twenty days after becoming due, there shall be added to the accrued income benefits (or settlement amount) an amount equal to twenty percent thereof, which shall be paid at the same time as, but in addition to, the accrued benefits unless review of the award is granted by the Board.
O.C.G.A. § 34-9-221(h):
Where compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed with the Board within sixty days of the due date of the first payment of compensation.
O.C.G.A. § 34-9-221(i):
Where compensation is being paid with or without an award and an employer or insurer elects to controvert on the grounds of a change in condition or newly discovered evidence, the employer shall, not later than ten days prior to the due date of the first omitted payment of income benefits, file with the Board and the employee a notice to controvert the claim in the manner prescribed by the Board.
POTENTIAL PENALTIES
Failure to file the Forms WC-1 (First Report of Injury/Notice to Controvert) or WC-3 (Notice to Controvert) before the twenty-first (21st) day after knowledge of the injury or death may subject the employer/insurer to an assessment of penalties (15% of benefits due) and/or attorney’s fees (25% of benefits or quantum meriut). O.C.G.A. §34-9-108.
The employer/insurer must either (1) commence benefits or (2) controvert the claim within twenty-one days after the employer has knowledge of the alleged injury/death. Although this is a relatively simple procedure, there are several subtleties which are often overlooked.
The twenty-one day period to either commence benefits or controvert does not begin until the employer has knowledge of the alleged injury/death. Often an employer will not actually receive notice of the alleged injury until several days after the alleged incident. As an example, if a claimant notifies his/her employer on Monday, October 4, 1999 that he/she was involved in a work-related accident the previous Friday, October 1, 1999, the employer/insurer must either commence benefits or controvert by October 25, 1999 (twenty-one days from October 4, 1999).
If after an initial investigation the employer/insurer chooses to accept the claim as compensable and commence benefits, the first payment must be made within twenty-one days of the employer’s knowledge of the injury. Pursuant to the “mailbox rule” contained in O.C.G.A § 34-9-221(b), the employer/insurer can satisfy that requirement by placing the payment in the mail on the twenty-first day if the payment is made from within the state of Georgia. If payments are being mailed from outside the state of Georgia, the twenty-one day deadline is effectively reduced to eighteen days from the employer’s knowledge of the alleged injury. Of course, when calculating the amount of benefits due, the employer/insurer must take into account the seven-day waiting period outlined in O.C.G.A. § 34-9-220.
If the employer/insurer chooses to controvert the claim, the WC-1(c) must be filed at the State Board on or before the twenty-first day after the employer’s knowledge of the alleged injury. It is important to note that the “mailbox rule” does not apply to the filing of a WC-1(c) or a WC-3. Accordingly, although an employer/insurer may commence benefits timely by placing the first payment in the mail on the twenty-first day, if a claim is being controverted, the WC-1(c) must actually be filed at the State Board on the twenty-first day. Placing the WC-1(c) in the mail on the twenty-first day is not sufficient.
Even if benefits are initially commenced, the employer/insurer may still controvert the entire claim for any reason by filing a WC-3 at the State Board within eighty-one (81) days from the employer’s knowledge of the alleged injury/death. This scenario often arises when the employer/insurer’s initial investigation shows the claim to be compensable but subsequent information is received which calls the compensability of the claim into question.
If the employer/insurer choose to controvert the claim after the twenty-one day deadline (but before the eighty-one day deadline), the employer/insurer must pay all accrued benefits and penalties prior to filing the WC-3. Cartersville Readymix Co. v. Hamby, 479 S.E. 2d 767, 224 Ga. App. 116 (1996) and Southeastern Aluminum Recycling v. Rayburn, 172 Ga. App. 648, 324 S.E. 2d 194 (1984).
SUSPENDING BENEFITS
When suspending benefits based on a full-duty work release from the authorized treating physician, the employer/insurer must file a WC-2 giving the claimant at least ten (10) days notice. Additionally, the medical record from the authorized treating physician containing the full-duty work release must be attached to the WC-2. Failure to give 10 days notice will allow the claimant to continue receiving benefits until proper notice is given.
O.C.G.A. §34-9-240
When offering an employee a suitable light-duty job via a WC-240, the WC-240 Form must be issued at least ten (10) days prior to the date the claimant is scheduled to return to work. The light-duty position must be approved by the authorized treating physician within the last sixty (60) days and a copy of the job description must be sent to the employee and legal counsel at the time it is submitted to the treating physician. If the employee accepts the job and fails to continue working for more than fifteen (15) days, the employer/insurer must immediately reinstate benefits. Failure to immediately reinstate benefits shall result in waiver of the employer/insurer’s potential defense of suitable employment for the period of time prior to the hearing.
O.C.G.A. §34-9-104
When filing a WC-104 to start the clock running toward a statutory change in condition, the employer/insurer must verify the form is issued within sixty (60) days of the claimant’s release to return to light-duty work.
BOARD RULE 263
Within thirty (30) days after the employee’s entitlement to TTD or TPD ends, the employer/insurer must have the employee’s injured body member rated for disability pursuant to the “Guides to the Evaluation of Permanent Impairment, Fourth Edition,” furnish a copy of the medical report of rating to the employee, and commence payment not later than twenty-one (21) days after knowledge of the rating. The employer/insurer are presumed to have knowledge of the rating not later than ten (10) days after the date of the report establishing a rating.
MEDICAL ISSUES
O.C.G.A. §34-9-203(c)
The Board may, in its discretion, assess a penalty of up to twenty percent (20%) of reasonable medical charges not paid within thirty (30) days from the date that the employer or the employer’s workers’ compensation insurance carrier receives the charges and reports required by the Board where there has been compliance with the requirements of law and Board Rules. Said penalties should be payable to the medical provider. For dates of accident before July 1, 2000, the deadline for paying medical bills was sixty (60) days.
It is particularly important to remember that the thirty (30) day deadline does not begin to run until the employer/insurer receive the “charges and reports” required by the Board. From a practical standpoint, many claimant attorneys and medical providers will often simply submit an itemized bill. That will not be enough to commence the 30 day time period. Board Rule 205 requires medical providers to provide the employer/insurer with a WC-20(a), supporting narrative reports, and itemized billing.
BOARD RULE 205(b)(3)
If the authorized treating physician makes a written request for authorization/pre-certification for treatment/testing, the employer/insurer must either (1) authorize the treatment/test or (2) file a WC-3 controverting the treatment/tests within thirty days of receipt of the physician’s written request. If the employer/insurer fails to either authorize or controvert within thirty days of the written request for pre-certification, the employer/insurer must pay for the treatment/testing pursuant to the Fee Schedule.
O.C.G.A §34-9-202(e)
After an accepted compensable injury, an employee is entitled to one IME at the employer/insurer’s expense with a physician of his/her choosing. The employee must request that IME within sixty (60) days of his last receipt of income benefits. (For dates of accident after July 1, 2001, that time period will be extended to one hundred twenty (120) days). The employer/insurer shall be notified in writing in advance and is not responsible for repeat diagnostic procedures in excess of $250.00.
PENALTY FOR NO PANEL
There are two penalties for non-compliance with the rules regarding the panel of physicians: Loss of control over selection of medical providers and extension of the statute of limitations for making a claim.
Although an employer must post a panel of physicians or a WC-MCO, there is no specific penalty for the failure to do so, except that the employee may go to any doctor of his choosing at the employer’s expense. O.C.G.A. § 34-9-201(f); see also Boaz v. K-Mart Corp., 254 Ga. 707, 334 S.E. 2d 167 (1985). Although the plain language of the statute seems to give the employee the unfettered right to choose his/her own healthcare providers if there is not a proper panel, that is not the case. When the employer had no properly posted panel of physicians, the first physician selected by the employee is deemed the authorized treating physician, and the employee has the right to make only one free change, after which time any change must be made by a formal request to the State Board. In short, the employee is not allowed to continually choose his own physicians for the entire duration of the claim simply because the employer did no have a properly posted panel of physicians.
Where the employer failed to post a proper panel of physicians, any remedial treatment received by the employee is considered to be authorized and, thus, extends the statute for making a claim for one year from the date of any such treatment. Georgia Institute of Technology v. Gore, 167 Ga. App. 359, 306 S.E. 2d 336 (1983).
OTHER ASSORTED PENALTIES
PAYMENT OF ORDER
All payments required by an Order must be made within twenty (20) days. Failure to make timely payments required by an Order will result in a mandatory 20% penalty. Please note that a settlement agreement becomes an Order of the State Board upon approval. Failure to pay an approved settlement within 20 days will also result in a mandatory 20% penalty.
NOTICE OF REPRESENTATION
Board Rule 102i
A party shall provide notice to the Board of the intent to obtain legal representation and the name of its legal representative, if any, within twenty-one (21) days from the issuance of the Hearing Notice. Failure to timely notify the State Board of legal representation will result in an assessment of penalties.
REQUEST TO PRODUCE DOCUMENTS
Board Rule 102g(3)
Prior or subsequent to a Request for Hearing being filed in a claim, the parties shall be entitled to receive from each other without cost, the documents specified in Form WC-102. These documents shall be provided within thirty (30) days of the date of the Certificate of Service subject to an assessment of penalties for failure to comply in a timely manner. Neither the request nor response shall be filed with the State Board.
APPLICATION FOR LUMP SUM/ADVANCE PAYMENT
Upon the filing of an application for lump sum or advance payment, the employer/insurer must file an objection with the Board within fifteen (15) days of the Certificate of Service. If no response is received within the 15 day period, the Board will assume that the request is unopposed.
REQUEST FOR CHANGE OF PHYSICIAN
Board Rule 200b(1)
Any party who objects to the request for a change in physician or treatment shall file their objections on a Form WC-200b with the Board within fifteen (15) days of the date of the Certificate of Service on the request, serving a copy on all unrepresented parties and counsel. Failure to file a timely response will likely result in the Board granting the request.
GENERAL MOTIONS
Motions filed on Board Form WC-102g require a response with the Board within fifteen (15) days of the date of the Certificate of Service. Failing to respond will likely result in the Board granting the Motion.
INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS
Failure to respond to Employee’s Interrogatories and Request for Production of Documents within thirty (30) days from the date of the Certificate of Service will result in the waiver of all objections in the future.
REQUEST FOR ADMISSIONS
Failure to respond to Employee’s Request For Admissions within thirty (30) days of the Certificate of Service may result in the Board ruling that the Requests are deemed admitted as a matter of law.
CIVIL PENALTIES
O.C.G.A. §34-9-18
Any person who willfully fails to file any form or report required by the Board, fails to follow any order or directive of the Board or any of its members or administrative law judges, or violates any rule or regulation of the Board shall be assessed a civil penalty of not less than $100.00 nor more than $1,000.00 per violation. All penalties and costs assessed under this Code Section shall be tendered and made payable to the State Board of Workers’ Compensation.
O.C.G.A. §34-9-19 - Penalty for false or misleading statements
Any person, firm, or corporation who willfully makes any false or misleading statement or representation for the purpose of obtaining or denying any benefit or payment under this Chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $1,000.00 nor more than $10,000.00 or by imprisonment not to exceed twelve (12) months.
O.C.G.A. §34-9-21 - Penalty for receiving unentitled benefits
Any employee who, with the intent to defraud, receives and retains any income benefits to which he or she is not entitled shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished for each offense by a fine of not less than $1,000.00 nor more than $10,000.00 or by imprisonment not to exceed one (1) year.
SUBSEQUENT INJURY TRUST FUND (SITF)
O.C.G.A. §34-9-362
An employer or insurer shall notify the administrator of the Fund of any possible claim against the Fund as soon as practical, but in no event later than seventy-eight (78) calendar weeks following the injury or the payment of an amount equivalent to 78 weeks of income or death benefits, whichever occurs last. Failure to comply with the provisions constitute a complete bar to recovery from the Subsequent Injury Trust Fund.
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