Atlanta Workers Compensation Law : Atlanta Workers' Compensation Lawyer & Attorney : Seth Bader Law Firm : Construction Accidents, Repetitive Motion Injuries, Disability : Atlanta, Marietta, Roswell, Georgia

(A)  Practice of Law.

(1)  Attorneys Entitled to Practice before the Board: Rule 1-203 of the Rules and Regulations for the Organization and Government of the State Bar of Georgia, as now in effect or as hereinafter amended, is controlling as to the practice of law before the Board and its Administrative Law Judges.

(2)  Any ex parte communication, including electronic mail, with an Administrative Law Judge or the Board in a pending claim is prohibited.

(3)  Attorneys, not licensed in the State of Georgia, shall comply with Uniform Rule of Superior Court 4.4 addressing Admission Pro Hac Vice.

(4)  On all filings with the Board, attorneys shall place their Georgia bar number. In addition, no attorney shall submit any form that has been discontinued or altered.  A violation of this rule may result in the rejection of the filing with the Board, and/or the imposition of a civil penalty under O.C.G.A. § 34-9-18.

(5) Service upon a party or attorney of any form, document, or other correspondence shall be by electronic mail.  Whenever electronic mail is not available, service shall be by U.S. Mail.

(B)  Reporting Requirements:

(1)  The address of record of an employee shall be that address shown on the most recent document filed with the Board.

(2)  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 21 days from the date of the hearing notice, subject to an assessment of penalties for failure to comply.

(3)  The address of record of an employer shall be the address shown on the Form WC-1, the address on file with a Licensed Rating Organization filed by the insurer on behalf of the employer, or the principal office of the employer within the State of Georgia.

(4)  Any party requesting a hearing shall furnish the correct name and current address of the employee, the employer, and the insurer/self insurer and third party administrator at the time the hearing is requested.

(5)  An attorney who represents a party other than an employee or a claimant in a contested matter must file a notice of representation on a Form WC-102B with the Board, and must serve a copy on all counsel and unrepresented parties.

(6)  An attorney who represents an employee or claimant in a contested matter shall file a fee contract as notice of representation and must serve a copy on all counsel and unrepresented parties.  The contract must be dated, conform to Rule 108, and both the attorney and the client must sign the contract.

(C)  Postponements, Leaves of Absence, and Legal Conflicts:

(1)

(a)  Postponement:  If a hearing is on a calendar for the first time, and if all parties agree to postpone it to be rescheduled, they may obtain the postponement without consulting the Administrative Law Judge before whom it is scheduled, absent prior specific instructions from the judge to the contrary.  This agreement must be communicated to the judge no later than 4:30 p.m. of the business day immediately preceding the hearing by the party who requested the hearing, or by any other party by agreement.  Otherwise and generally, a hearing shall be postponed only upon strict legal grounds, or at the discretion of the Board or an Administrative Law Judge.  For a case that has already been postponed, a second or subsequent request by counsel to postpone the case from a calendar must be made no later than 4:30 p.m. on the business day immediately before the scheduled hearing, and the request must be approved by the Administrative Law Judge.  For a case to be removed from the calendar with no reset, this notification, as with a postponement request, must be made no later than 4:30 p.m. on the business day immediately before the scheduled hearing.  If the judge determines that the case is not ready for trial at this time, the claim may be removed from the calendar, not to be reset until the parties certify that discovery is complete and the case is ready to be tried.

(b)  Whenever the pending hearing issues resolve or a case settles prior to a scheduled hearing date, the parties or attorneys shall immediately notify the Board or assigned Administrative Law Judge:

(1)  first, by telephone call; and

(2)  if so instructed by the Trial Division, by subsequent written or electronic confirmation.

(c)  Any party or attorney who fails to follow the cancellation, postponement, or rescheduling procedures as outlined above in sections (C)(1)(a) & (b), and who is unable to show good cause for such failure, may be subject to civil penalties, assessed attorney's fees, and/or costs, including but not limited to the cost of the court reporter.

(2)  Leave of absence.  In the event that an attorney wishes to obtain a leave of absence from the Board, the request should be submitted on a Form WC-102C and mailed to the Atlanta office of the State Board of Workers' Compensation or filed on-line via ICMS.  The granting of a leave of absence will not apply to cases already calendared on the date the leave is signed, and will apply only to court appearances and mediations.  In the event that leave is requested for a date already calendared, the attorney must request a postponement from the Administrative Law Judge, with permission of opposing counsel or by conference call, prior to the hearing or mediation.

(3)  For the purpose of resolving requests for continuance based upon legal conflict, Rule 17.1(B)(4) of the Uniform Rules of the Superior Courts shall apply.  A conflict letter shall be served upon opposing counsel and unrepresented parties no later than seven days prior to the date of conflict but shall not be filed with the Board unless or until such conflict letter is requested by an Administrative Law Judge or the Board.  The action which was first filed shall take precedence, subject to judicial discretion.

(D)  Motions and Interlocutory Orders Pending a Hearing:

(1) 

(a)   All motions and objections shall be made on Form WC-102D, with the exceptions of motion for reconsideration and request for a change of physician/additional medical treatment under Board Rule 200(b)(1).  Motions and objections, including briefs and exhibits, shall be limited to 50 pages, unless otherwise approved by an Administrative Law Judge or the Board.  When attaching documents as evidence to motions and objections, do not use tabs to separate documents.  Any party or attorney filing a motion or objection shall also serve a copy on all counsel and unrepresented parties, along with supporting documents, including a separate certificate of service identifying the names and addresses served.

(b)  When filing a motion for reconsideration, the parties or attorneys shall:

(1) immediately notify the Board or assigned Administrative Law Judge by telephone call;

(2)  use the ICMS doc-type labeled motion for reconsideration;

(3)  limit their motion to 20 pages, including briefs and exhibits, unless otherwise permitted by the Board or an Administrative Law Judge; and

(4)  serve a copy on all counsel and unrepresented parties, along with supporting documents, including a separate certificate of service identifying the names and addresses served.

(2)  Prior to filing a motion, including requests for documents made pursuant to Rule 102(F)(1), the moving party shall confer with the opposing party, or counsel if the party is represented, in a good-faith effort to resolve the matters involved.

(3)  A party objecting to a motion shall respond on a Form WC-102D, which must be filed with the Board within 15 days of the date of the certificate of service on the request, and shall serve a copy on all counsel and unrepresented parties.

(4)  Whenever the pending issues resolve, in whole or in part, in a motion, the parties or attorneys shall immediately notify the Board or assigned Administrative Law Judge: (1) first, by telephone call; and (2) if so instructed, by subsequent written or electronic confirmation.  Any party or attorney who fails to follow this procedure, and who is unable to show good cause for such failure, may be subject to civil penalties and/or assessed attorney's fees.

(5)  An Administrative Law Judge may issue an interlocutory order suspending or reinstating payment of weekly benefits to an employee pending an evidentiary hearing.

(6)  Where the issue is which of two or more employer/insurers is liable, the Administrative Law Judge or the Board may issue an interlocutory order directing the employer or one of the insurers to pay weekly benefits and medical expenses until the determination of liability of an insurer has been made.  Reimbursement may thereafter be ordered where appropriate.

(E)  Conduct of Hearings:

(1)  No person shall, during the course of a proceeding before an Administrative Law Judge or Director, engage in any discourteous or disruptive conduct.

(2)  Any violation of the Georgia Rules of Professional Conduct of the State Bar of Georgia may subject an attorney to the assessment of a civil penalty pursuant to O.C.G.A. § 34-9-18 and referral to the State Bar of Georgia for disciplinary action.

(3)

(a)  Prior to the commencement of a hearing, the parties shall consolidate any and all records, including but not limited to medical records, and any other documentary evidence to be admitted at a hearing in order to avoid any repetition and duplication.

(b)  All medical evidence regarding the treatment, testing or evaluation of the claimant for the accident which is the subject of the hearing should be exchanged between the parties as soon as practicable, but no later than ten days prior to the hearing, and all depositions should be completed prior to the hearing.  Failure to exchange such evidence within ten days of a hearing may, in the discretion of the Administrative Law Judge or the Board, result in:

(1)  the imposition of civil penalties,

(2)  award of assessed attorney fees,

(3)  a continuance,

(4)  award of costs,

(5)  award of witnesses fees and expenses, and/or

(6)  in limited circumstances, the exclusion of evidence at the hearing.

(c)  If the amount of the average weekly wage is in dispute, counsel shall exchange written contentions with respect to their methods of calculation at least ten days prior to the hearing, and shall present the written contentions to the Administrative Law Judge at the commencement of the hearing.

(d)  If accompanied by an affidavit, a written laboratory test result report is admissible into evidence for purposes of authenticity only. Any other evidentiary objections can be raised by the parties in motions or at evidentiary hearings.

(e)  Any challenge to the testimony of an expert under O.C.G.A. § 24-9-67.1 shall be made not later than 15 days prior to the hearing. Failure to raise a timely challenge shall result in waiver of the challenge unless otherwise agreed to by the attorneys and the Administrative Law Judge.

(4)  Parties may be allowed to make arguments either by the filing of briefs within the time set by the Administrative Law Judge at the hearing, by oral argument at the conclusion of the presentation of evidence at the hearing, or both.  Oral argument shall be limited to five minutes for each party.  Briefs shall be limited to 30 pages, unless otherwise approved by an administrative law judge or the Board.

(5)  It is the policy of the Board to encourage the parties to close the record at the conclusion of the hearing.  The parties are expected to make diligent efforts to present all the evidence at the hearing, without the need for the record to remain open.

(6)  Hearing Transcript: Any Administrative Law Judge is authorized to relieve the court reporter of the duty of transcribing the record of proceedings.  The record shall be transcribed and submitted to the Board or the superior court if there is an application for review of an appeal.  The appellant shall serve a copy of the application for review or appeal on the court reporter at the same time it is served on all other persons.

(7)  Notices of hearing may be sent by electronic mail to the parties and attorneys of record.  Whenever electronic transmission is not available, a notice of hearing will be sent by U.S. Mail.

(F)  Discovery and Submission of Evidence:

(1)  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 30 days of the date of the certificate of service, subject to an assessment of penalties for failure to comply. Neither the request nor response shall be filed with the Board.

(2)  Discovery filed pursuant to the Civil Practice Act shall only be permitted after a hearing has been requested in the claim, or as otherwise specified in these rules.

(3)  Discovery documents, including but not limited to depositions, interrogatories, and notices to produce, shall not be filed with the Board until such time as they are tendered in evidence in a proceeding before the Board.  Correspondence between the parties shall not be filed with the Board.

(4)  All documents, transcripts, exhibits, and other papers filed with the State Board of Workers' Compensation shall be submitted on 8- 1/2 by 11 inch paper only.  Sufficient space shall be left at the top of all documents (at least one and one-half inches) so that all information will remain readable after the documents have been filed.  Copies of items offered in evidence at a hearing must be properly identified and tendered to opposing parties at the hearing.  When submitting any documents as evidence, do not use tabs to separate documents.

(G)  Written Responses: The filing of all written responses will be governed in accordance with O.C.G.A. § 9-11-6(e).

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(a)  The time for application for review commences on the date shown on the notice of award and is computed as in paragraph (3) of subsection (d) of O.C.G.A. § 1-3-1.

(b)  Appearance before the Appellate Division shall be by brief only unless a request for oral argument is made at the time the application for review is filed by appeal or cross appeal.  Within 10 days from the date of the certificate of service on the application for review, the appellee or cross appellee may request oral argument.  Oral argument shall be limited to five minutes for each party.

(1)  Any party applying for review shall serve a copy of the application for review and enumerations of errors allegedly made by the Administrative Law Judge upon all opposing parties.  Failure to file enumerations of error with the Board may result in the dismissal of the appeal or cross appeal.

(2)  The party requesting review shall have 20 days from the date shown on the certificate of service of the application for review in which to file a brief.  The party requesting the review shall certify that a copy of the brief was served in person or by mail to all opposing parties on the date the brief is submitted to the Board.  Opposing parties shall then have 20 days from the date of appellant's or cross appellant's certificate of service to file reply briefs with the Board.  Briefs not filed in conformity with this rule will not be accepted except by permission of the Board.

(3)  Notices of Oral Argument, and other correspondence, will be sent by electronic mail and only to attorneys of record.  Whenever electronic transmission is not available, a Notice of Oral Argument, or other correspondence, shall be sent by mail.

(4)  Briefs shall generally follow the format required by the appellate courts.  Only the original of the brief is required to be filed with the Board. Briefs shall be limited to 20 pages, unless otherwise approved by the Board.

(5)  Where a case has been scheduled on a calendar for oral argument, no more than one postponement will be granted to reschedule the argument.  If the argument cannot be made within that time, the claim may be reviewed on briefs only.

(6)  Any party scheduled for oral argument shall notify the Appellate Division no later than 4:30 the day before the scheduled appearance if they do not intend to appear.

(7)  Amicus curiae briefs may be filed without permission any time before a decision is issued.  The amicus brief shall disclose the identity and interest of the person or group on whose behalf the brief is filed.

(8)  In a pending appeal before the Appellate Division, whenever the issues resolve, in whole or in part, or a case settles, the parties or attorneys shall immediately notify the Court Clerk of the Appellate Division: (1) first, by telephone call; and (2) if so instructed by the Appellate Division, by subsequent written or electronic confirmation. Any party or attorney who fails to follow this procedure, and who is unable to show good cause for such failure, may be subject to civil penalties, assessed attorney's fees, and/or costs.

(9)  When filing a motion for reconsideration, the parties or attorneys shall:

(1)  immediately notify the Court Clerk of the Appellate Division or the Board by telephone call;

(2)  use the ICMS doc-type labeled motion for reconsideration;

(3)  limit their motion to 20 pages, including briefs and exhibits, unless otherwise permitted by the Court Clerk or the Board; and

(4)  serve a copy on all counsel and unrepresented parties, along with supporting documents, including a separate certificate of service identifying the names and addresses served.

(c)  The Board will apply the law of Georgia regarding the tenure and character of newly discovered evidence required for the granting of a new trial.

(d)  The Board will not accept an application for review of an interlocutory order unless the Administrative Law Judge, in the exercise of his or her discretion, certifies that the order or decision is of such importance to the case that immediate review should be had. In the event the Administrative Law Judge certifies his or her interlocutory order for immediate review, in order for the Appellate Division to have jurisdiction under O.C.G.A. 34-9-103(a), a party must file an application for review with the Appellate Division within twenty days of the date of the original interlocutory order.

(e)  No person appearing before the Appellate Division shall engage in any undignified or discourteous conduct.

(f)  Upon determining that an appeal has been prosecuted without reasonable grounds, the Appellate Division shall have the authority to assess penalties and attorneys' fees against the offending party.

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(a)

(1)  The employer/insurer have a duty to provide all reasonable and necessary medical treatment in a timely manner and to give appropriate assistance in contacting medical providers when necessary.  The employee has a continuing obligation to cooperate with medical providers in the course of their treatment for work related injuries.

(2)  Payment of compensation for costs by the employer or its insurer directly to the providers of medical, surgical and hospital care and other treatment, items, or services on behalf of the employee or directly to the employee shall satisfy employer's obligation to furnish the employee compensation for costs of such medical, surgical, hospital care and other treatment, items and services provided for by O.C.G.A. § 34-9-200(a).

(b)

(1)  Changes in treatment.  Except as provided in subsection (b) of O.C.G.A. § 34-9-201, changes of physician or treatment are made only by agreement of the parties or by order of the Board.  If there has been no hearing requested, a party requesting a change shall make a good faith effort to reach agreement on the change before requesting an order from the Board.

If an agreement cannot be reached, the party requesting the change shall make the request on a Form WC-200b.  When filing the WC-200b, the moving party shall sign the Form WC-200b, attach supporting documentation including a separate certificate of service identifying the names and addresses serviced attached to the end of the request, and serve a copy on all counsel and unrepresented parties.  In cases that have been designated as "Medical Only", the requesting party shall file a Form WC-14 Notice of Claim or a Form WC-1 along with the Form WC-200b in order for the Board to process the request.  The party making the request must specify the reason for the requested change, as well as the date that the change shall be effective.  If the argument in support of the request is based on testimony, then an affidavit must be attached to the form, and if the argument refers to documents, then a copy of the documents must be attached.  Do not use tabs to separate documents used as evidence.  If the Board grants a change, the effective date will be the date that the Form WC-200b was filed, unless otherwise specified.

Any party who objects to the request for a change of physician or treatment shall also file their objection on a Form WC-200b with the Board within 15 days of the date of the certificate of service on the request, including a separate certificate of service identifying the names and addresses served attached to the end of the objection, and serving a copy on all unrepresented parties and counsel.  Affidavits and documents must be attached as specified above.

All requests and objections to change of physicians shall be filed on a Form WC-200b and shall be limited to 50 pages, including briefs and exhibits, unless otherwise permitted by an Administrative Law Judge or the Board.

Whenever the pending issues in a request resolve, in part or in whole, the parties or attorneys shall immediately notify the assigned Administrative Law Judge:

(1)  first, by telephone call; and

(2)  if so instructed, by subsequent written or electronic confirmation.

Any party or attorney who fails to follow this procedure, and who is unable to show good cause for such failure, may be subject to civil penalties and/or assessed attorney's fees.

If a hearing has been requested, the party requesting a change of physician or treatment may include the request in the original request for hearing, or amend the hearing request within 15 days prior to the date of the hearing to include the issue of change of physician or treatment.  Upon consideration of the evidence, the Administrative Law Judge will render a decision on all the issues presented.

If the parties agree on a change of physician or treatment, a properly executed Form WC-200a may be filed with the Board, with copies provided to the named medical provider(s) and parties to the claim, which form shall be deemed approved and made the order of the Board pursuant to O.C.G.A. § 34-9-200(b), unless otherwise ordered by the Board.

(2)  The party requesting/objecting to a change in physician shall set forth reasons why the change will/will not benefit the employee, or provide the employee with medical care reasonably required to effect a cure, give relief, or restore the employee to suitable employment.  Factors which may be considered in support of the request/objection may include, but are not limited to, the following:

(i)  Proximity of physician's office to employee's residence;

(ii)  Accessibility of physician to employee;

(iii)  Excessive/redundant performance of medical procedures;

(iv)  Necessity for specialized medical care;

(v)  Language barrier;

(vi)  Referral by authorized physician;

(vii)  Noncompliance of physician with Board Rules and procedures;

(viii)  Panel of physicians;

(ix)  Duration of treatment without appreciable improvement;

(x)  Number of prior treating physicians;

(xi)  Prior requests for change of physician/treatment;

(xii)  Employee released to normal duty work by current authorized trea ting physician;

(xiii)  Current physician indicates nothing more to offer.

(3)  When filing a motion for reconsideration, the parties or attorneys shall:

(1)  immediately notify the Board or assigned Administrative Law Judge by telephone call;

(2)  use the ICMS doc-type labeled motion for reconsideration;

(3)  limit their motion to 20 pages, including briefs and exhibits, unless otherwise permitted by the Board or an Administrative Law Judge; and

(4)  serve a copy on all counsel and unrepresented parties, along with supporting documents, including a separate certificate of service identifying the names and addresses served.

(c)

(1)  As long as an employee is receiving compensation, he or she shall submit himself or herself to examination by the authorized treating physician scheduled by the employer/insurer at reasonable times and with reasonable notice.  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 shall be suspended until such refusal or objection ceases and no compensation shall at any time be payable for the period of suspension unless in the opinion of the board the circumstances justify the refusal or obstruction.

(2)  Nothing contained herein shall be construed to abridge the employee's continued right to schedule his/her appointments for authorized medical treatment.

(d) The employer/insurer may suspend weekly benefits for refusal of the employee to submit to treatment only by order of the Board.

(e)  Medical Reports

The employer/insurer shall not file with the Board a medical report for any injury which occurred after January 1, 1989, except as follows:

(1)  The report or its attachments contains a permanent partial disability rating (file within 10 days of employer/insurer's receipt);

(2)  A rehabilitation plan is filed with the Board. In such instance the medical reports shall be filed with the rehabilitation plan;

(3)  Medical reports are requested by the Board (file within 10 days of request.)  Any additional medical reports required shall be filed within 10 days of the employer/insurer's receipt of same.  The employer/insurer shall maintain copies of all medical reports in their files and shall not file medical reports except in compliance with this Rule.

(f)

(1)  Requests for Medical Information.  The employee shall, upon the request of the employer/insurer, furnish copies of all medical records and reports which are in his/her possession concerning the treatment for the accident which is the subject of the claim.  The employee shall furnish the copies within 30 days of the date of the request.  The employer/insurer shall pay the reasonable cost of the copies as provided by the Board-approved fee schedule.

(2) The employer/insurer shall, upon the request of the employee, furnish a copy of the posted panel of physicians, and copies of all medical records and reports in their possession concerning the treatment for the accident which is the subject of the claim, and shall, upon request of the employee, furnish copies of all medical records and reports which were obtained with a release of the employee provided pursuant to O.C.G.A. § 34-9-207(b), within 30 days of the date of the request at no expense to the employee.

(3)  Upon failure of either party to furnish information as provided above, the physician or other medical providers shall, upon request, furnish copies of all medical reports and bills in their possession concerning the treatment for the accident which is the subject of the claim, at no expense to the employee or his/her attorney.  A reasonable cost for copies pursuant to the fee schedule may be charged against the party determined to be responsible for payment of medical expenses.  Nothing in this Rule shall limit an employee's right to obtain a complete copy of his/her medical records from any health care provider.

(g)  Physicians as defined in O.C.G.A. § 34-9-201(a) may be called upon and may be issued a subpoena requiring their testimony as expert witnesses based upon their examinations and treatment of employees alleging work-related injuries.  In lieu of live testimony at hearings in cases pending before the State Board of Workers' Compensation regarding matters subject to the Act, as permitted under O.C.G.A. § 24-10-24, depositions may be taken pursuant to O.C.G.A. § 24-9-26 et seq and O.C.G.A. § 34-9-102(d)(3), and said physicians shall be compensated for their preparation time and actual time pursuant to the provisions of the Board approved Fee Schedule or by a fee agreement agreed to by the parties and the physician.

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