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

(a)  An Alternative Dispute Resolution Division is established to resolve disputes without the necessity of a hearing.

(b)  Hearing requests or motions will be screened in order to identify cases likely to be resolved by Board order or the mediation process without a hearing.

(c)  In addition, the ADR Division and each Administrative Law Judge shall have the authority to direct the parties to attend a mediation conference when deemed appropriate by the Board.  The Board's authority to direct the parties to attend a mediation conference shall extend to include mediation of disputes which arise in cases designated as "Medical Only."  Participation in a mediation conference shall not abridge the rights of the parties to a subsequent evidentiary hearing or ruling on the contested issues should the issues not be successfully resolved through mediation.  An expedited hearing may be scheduled by agreement of the parties subsequent to the conference being held.  An agreement reached at mediation will be reduced to writing and shall have the full effect of an award or order issued by the Board.  A settlement agreement reached through the mediation process must be submitted and reviewed pursuant to

and Board Rule 15.

(d)  Parties requesting a Board mediation for the purpose of an all issues settlement must file a Form WC-100 certifying that all parties are in agreement with the request for a settlement mediation and that the employer/insurer has, or will have by the date of the first scheduled mediation conference, authority to resolve the claim based upon a good faith evaluation.  The Form WC-100 must be served on all parties and parties at interest simultaneous with the board filing.

(e)  Notices of Mediation will be sent by electronic mail and shall only be sent to attorneys of record. Whenever electronic transmission is not available, a Notice of Mediation will be sent by mail.

(f)  Communications.

(1)  All communications or statements, oral or written, that take place within the context of a mediation conference are confidential and not subject to disclosure.  Such communications or statements shall not be disclosed by any mediator, party, attorney, attendee or Board employee, and may not be used as evidence in any proceeding.  An executed Board mediation sheet or written executed agreement resulting from a mediation is not subject to the confidentiality described above.

(2)  Neither the mediator nor any 3rd party observer present with the permission of the parties may be subpoenaed or otherwise required to testify concerning a mediation or settlement negotiations in any proceeding.  The mediator's notes shall not be placed in the Board's file, are not subject to discovery, and shall not be used as evidence in any proceeding.

(3)  Confidentiality does not extend to:

(A)  threats of violence to the mediator or others;

(B)  security personnel or law enforcement officials;

(C)  party or attorney misconduct;

(D)  legal or disciplinary complaints brought against a mediator or attorney arising out of and in the course of a mediation;

(E)  appearance;

(F)  the list of physicians submitted to an Administrative Law Judge by the parties or attorneys when the parties have been ordered to submit the names of physicians in a change of physician dispute and the dispute is not resolved through mediation.

(g)  Attendance.

(1)  Each party to the dispute is required to have in attendance at the mediation conference a person or persons who have adequate authority to resolve all pending issues.  The employee shall be in attendance at the mediation conference.  The employer shall have in attendance at the mediation conference a representative of the employer/insurer who has authority to resolve all pending issues.  The requirement of the presence of the employer/insurer's representative shall not be satisfied by the presence of legal counsel of the employer.  In claims where the Subsequent Injury Trust Fund (SITF) is a party-at-interest to the claim, a representative of the SITF must either be in attendance at the mediation conference or have extended settlement authority to the representative of the employer/insurer no later than two business days prior to the date of the conference.  Exceptions to the attendance requirement may be granted upon permission of an Administrative Law Judge from the ADR Division or his/her designee, obtained prior to the conference date.

(2)  Only the parties and attorneys of record may attend a scheduled mediation.  Exceptions to attendance may be granted if agreed or consented to by the parties and attorneys of record and approved by a mediator or an Administrative Law Judge.

(h)

(1)  Any party or attorney directed or ordered by the Board to participate in or attend a mediation conference and who fails to attend the scheduled conference without reasonable grounds may be subject to civil penalties, attorney's fees, and/or costs.  If the parties or attorneys agree to the postponement and/or rescheduling of a mediation conference, such request may be granted at the discretion of an Administrative Law Judge from the ADR Division or his/her designee upon good cause shown.  Any party or attorney requesting cancellation, postponement or rescheduling of a mediation conference shall provide notice to all parties or their attorneys and shall promptly, but in no event later than 4:30 p.m. on the business day immediately before the scheduled mediation conference, notify the ADR Division of the request: (1) first, by telephone call; and (2) if so instructed by the ADR Division, by subsequent written or electronic confirmation.


(2)  Whenever the pending mediation issues resolve or a case settles prior to a scheduled mediation date, the parties or attorneys shall immediately notify the ADR Division: (1) first, by telephone call; and (2) if so instructed by the ADR Division, by subsequent written or electronic confirmation.

(3)  Any party or attorney who fails to follow the cancellation, postponement, or rescheduling procedures as outlined above in sections (h)(1) & (2), and who is unable to show good cause for such failure, may be subject to civil penalties, assessed attorney's fees, and/or costs.

(4)  The ADR Division may postpone, reset, cancel, or take off the calendar any mediation request, scheduled mediation, or Board ordered mediation.

(i)  No person, party, or attorney shall, during the course of any mediation, engage in any discourteous, unprofessional, or disruptive conduct.

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It is the purpose of this article to encourage the employment of persons with disabilities by protecting employers from excess liability for compensation when an injury to a disabled worker merges with a preexisting permanent impairment to cause a greater disability than would have resulted from the subsequent injury alone.  It shall not be construed to create, increase, or provide any benefits for injured employees or their dependents not otherwise provided by this chapter.  The entitlement of an injured employee or dependents to compensation under this chapter shall be determined without regard to this article, the provisions of which shall be considered only in determining whether the employer or insurer who has paid compensation under this chapter is entitled to reimbursement from the Subsequent Injury Trust Fund.

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Employers which are self-insured with regard to workers' compensation benefits but which are not authorized by the State Board of Workers' Compensation or other regulatory bodies as self-insured employers shall not be eligible for reimbursement from the Subsequent Injury Trust Fund.

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There is established a Subsequent Injury Trust Fund which shall be of a perpetual, nonlapsing nature for the sole purpose of making payments in accordance with this article.  The fund shall be administered by the administrator of the Subsequent Injury Trust Fund.  All moneys in the fund shall be held in trust and shall not be money or property of the state.  The board of trustees created by Code Section 34-9-354 shall be authorized to invest the moneys of the fund in the same manner as provided by law for investments by domestic insurers (Chapter 11 of Title 33).  The board of trustees shall be authorized to designate the director of the Office of Treasury and Fiscal Services as custodian of the fund for the purpose of investing the fund. In the event the director of the Office of Treasury and Fiscal Services is appointed custodian he shall have exclusive control of the investment of the fund; and the trustees shall be absolved of any responsibility for such fund.  The custodian shall be authorized to disburse moneys from the fund only upon written order of the administrator.

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The administrator and the custodian, before entering upon the performance of their duties, shall each execute and file an official surety bond of not less than $50,000.00.  The bonds shall be approved as to form and sufficiency by the Attorney General.  The bonds shall be payable to the Subsequent Injury Trust Fund and conditioned upon the faithful performance of the respective duties of the administrator and custodian.  The premium for the bonds shall be paid out of the moneys of the Subsequent Injury Trust Fund.

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(a)  There is created a Board of Trustees of the Subsequent Injury Trust Fund composed of five members who shall serve for a term of six years each. One member shall be selected from each of the following fields: the insurance industry; rehabilitation professionals; management; labor; and the public at large.  The Commissioner of Insurance and the executive director of the State Board of Workers' Compensation shall be ex officio members of the board of trustees. The ex officio members shall serve without compensation in an advisory capacity only.

(b)  The board of trustees shall be appointed by the Governor, and each member shall serve until his successor is appointed and qualified.

(c)  One member shall be appointed for a period of two years, one member for a period of three years, one member for a period of four years, one member for a period of five years, and one member for a period of six years. Thereafter, each member shall be appointed for a full term of six years or the remainder of an unexpired term.

(d)  The duties of the board of trustees shall include, but not necessarily be limited to, the:

(1)  Appointment of the administrator of the fund and the setting of the compensation of the administrator;

(2)  Establishment of policies, procedures, rules, and regulations incidental to the fund's operations; and

(3)  Approval of the administrative budget of the fund.

(e)  The board of trustees shall elect one of its members as chairman, who shall serve for a period of two years.

(f)  The members of the board of trustees shall be required to take and subscribe before the Governor an oath to discharge the duties of their office faithfully and impartially. This oath shall be in addition to the oath required of all civil officers.

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(a)  The board of trustees shall appoint the administrator of the fund, and he shall serve at the pleasure of the trustees and without term of office.  All officials, personnel, and employees of the Board of Trustees of the Subsequent Injury Trust Fund are placed in the classified service of the state merit system unless otherwise excluded under the authority of Code Sections 45-20-1 through 45-20-11 and 45-20-14 or other statutory authority; provided, however, that except for purposes of determining compensation, the administrator shall not be in the classified service of the state merit system.

(b)  The administrator shall administer this article under such policies and rules and regulations as may be adopted by the trustees and shall be authorized to hire such personnel as may be necessary to carry out the purposes of the fund.

(c)  All employees of the fund shall be deemed to be employees of the state and, as such, members of the Employees' Retirement System of Georgia.

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(a)  As soon as practicable after January 1 but not later than January 31 of each calendar year, the administrator shall forward to each insurer and self-insured employer a questionnaire asking for the total amount of compensation, medical benefits, and rehabilitation benefits paid by each insurer and self-insured employer during the preceding calendar year. This report is to be completed and returned to the administrator no later than March 1 of the same calendar year in which the request for this information is submitted.  Failure to submit the report to the administrator of the fund by March 1 shall result in an automatic penalty of $50.00 per day for each day the report is delinquent or 10 percent of the assessment, whichever is greater.  This penalty will be added to the assessment.

(b)  Any assessment levied or established in accordance with this article in a specified amount as may be determined pursuant to this article shall constitute a personal debt of every employer or insurer so assessed and shall be due and payable to the Subsequent Injury Trust Fund when payment is called for by the administrator.  In the event of failure to pay any assessment upon the date determined by the administrator, the administrator may file a complaint for collection against the employer or insurer in a court of competent jurisdiction.

(c)  In the event any employer or insurer duly assessed fails to pay to the administrator on behalf of the Subsequent Injury Trust Fund the amount so assessed on or before the date specified by the administrator, the administrator is authorized to add to the unpaid assessment an amount not exceeding 10 percent of the unpaid assessment and reasonable attorney's fees to defray the cost of enforcing collection.

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(a)  If an employee who has a permanent impairment incurs a subsequent injury or disease arising out of and in the course of employment, which subsequent injury results in liability for the disability arising from merger of the subsequent injury with the preexisting permanent impairment, the employer or insurer shall in the first instance pay all compensation provided by this chapter. The employer or insurer shall be reimbursed from the Subsequent Injury Trust Fund for all weekly income benefits payments payable after 104 weeks of payment.

(b)  An employer or insurer who has paid medical and rehabilitation expenses on behalf of the employee who comes under this article shall be entitled to reimbursement from the fund on the following basis:

(1)  Fifty percent reimbursement of all medical and rehabilitation expenses which exceed $5,000.00 but do not exceed $10,000.00;

(2)  One hundred percent reimbursement of all medical and rehabilitation expenses paid which exceed $10,000.00.

(c)  As a prerequisite to reimbursement from the fund, the insurer shall be required to certify that the medical and indemnity reserves have been reduced to the threshold limits of reimbursement.

(d)  When the same employer in a claim accepted by the fund for reimbursement returns the injured worker to work with the same employer, the employer shall not be subject to further indemnity or medical deductibles in the event the employee suffers a new accident that merges with the same prior impairment that previously resulted in fund acceptance of the prior reimbursement claim. This provision does not apply if the employee returns to work for a different employer or there has been a break in service by the employee.

(e)  As a prerequisite to reimbursement from the fund, there must be evidence of payment of workers' compensation benefits in accordance with Code Section 34-9-221 or an award of the State Board of Workers' Compensation directing the employer to pay weekly income benefits as a result of the subsequent injury.

(f)  The fund shall reimburse only those indemnity, medical, and rehabilitation expenses that the employer or insurer was legally obligated to pay to the employee or claimant. The fund shall reimburse such expenses at a rate not exceeding the usual and customary charges. The administrator of the fund may refer any medical or rehabilitation expense to the State Board of Workers' Compensation for review and recommendation and, in the event of a dispute between the fund and the employer or insurer, the questioned medical and rehabilitation expense shall be referred to the State Board of Workers' Compensation for approval. This subsection shall apply to any claim filed against the fund on and after July 1, 1987.

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It shall be incumbent upon the employer to establish that the employer had reached an informed conclusion prior to the occurrence of the subsequent injury or occupational disease that the preexisting impairment is permanent and is likely to be a hindrance or obstacle to employment or reemployment.  Where, however, the employer establishes knowledge of the preexisting permanent impairment prior to the subsequent injury, there shall be a presumption that the employer considered the condition to be permanent and to be, or likely to be, a hindrance or obstacle to employment where the condition is one of the following:

(1)  Epilepsy;

(2)  Diabetes;

(3)  Arthritis which is an obstacle or hindrance to employment or reemployment;

(4)  Amputated foot, leg, arm, or hand;

(5)  Loss of sight of one or both eyes of a partial loss of uncorrected vision of more than 75 percent bilaterally;

(6)  Residual disability from poliomyelitis;

(7)  Cerebral palsy;

(8)  Multiple sclerosis;

(9)  Parkinson's disease;

(10)  Cardiovascular disorders;

(11)  Tuberculosis;

(12)  Mental retardation, provided the employee's intelligence quotient is such that he falls within the lowest 2 percent of the general population; provided, however, that it shall not be necessary for the employer to know the employee's actual intelligence quotient or actual relative ranking in relation to the intelligence quotient of the general population;

(13)  Psychoneurotic disability following confinement for treatment in a recognized medical or mental institution for a period in excess of six months;

(14)  Hemophilia;

(15)  Sickle cell anemia;

(16)  Chronic osteomyelitis;

(17)  Ankylosis of major weight-bearing joints;

(18)  Hyperinsulism;

(19)  Muscular dystrophy;

(20)  Total occupational loss of hearing as defined in Code Section 34-9-264;

(21)  Compressed air sequelae;

(22)  Ruptured intervertebral disc; or

(23)  Any permanent condition which, prior to the occurrence of the subsequent injury, constitutes a 20 percent impairment of a foot, leg, hand, or arm, or of the body as a whole.

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(a)  An employer or insurer shall notify the administrator of the fund of any possible claim against the fund as soon as practicable, but in no event later than 78 calendar weeks following the injury or the payment of an amount equivalent to 78 weeks of income or death benefits, whichever occurs last.

(b)  The claim must be filed in accordance with the requirements of subsection (a) of this Code section prior to the final settlement of the claim.

(c)  Failure to comply with the provisions of subsections (a) and (b) of this Code section will constitute a bar to recovery from the Subsequent Injury Trust Fund.

(d)  For those notices of claim filed with the fund on or before July 1, 2006, the employer or insurer shall have until June 30, 2009, to obtain a reimbursement agreement issued by the fund or the claim for reimbursement shall be deemed automatically denied.

(e)  For those notices of claim filed with the fund after July 1, 2006, the employer or insurer shall have three years from the date the notice was received by the fund to obtain a reimbursement agreement issued by the fund or the claim for reimbursement shall be deemed automatically denied.

(f)  Notwithstanding subsections (d) and (e) of this Code section, if compensability of the underlying workers' compensation claim is at issue before the State Board of Workers' Compensation, then the employer or insurer shall have three years from the date of final adjudication of compensability by the State Board of Workers' Compensation or any appellate court to obtain a reimbursement agreement issued by the fund or the claim for reimbursement shall be deemed automatically denied.

(g)  Upon actual or statutory automatic denial pursuant to subsection (d), (e), or (f) of this Code section, the employer or insurer shall have 20 days from the date of denial to request a hearing with the State Board of Workers' Compensation pursuant to Code Section 34-9-100; otherwise recovery shall be barred.

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(a)  When any employer or insurer and the administrator reach an agreement with respect to reimbursement under this article, it shall be reduced to writing and submitted to the State Board of Workers' Compensation for approval.  The board shall consider such an agreement upon receipt thereof and, if it finds it to meet the provisions of this article, shall approve the agreement and issue its order directing the agreed reimbursement.

(b)  If the employer or the insurer fails to reach an agreement with the administrator in regard to reimbursement under this article, either party may make application to the State Board of Workers' Compensation for a hearing in regard to the matters at issue.  Such matters shall then be determined in the manner provided for other workers' compensation proceedings and appeals.

(c)  Failure of an employer or insurer to file for a hearing with the State Board of Workers' Compensation within 90 days after the receipt of a formal denial from the Subsequent Injury Trust Fund shall constitute a bar to recovery from the fund.

(d)  The administrator, under the policy or rules and regulations of the board of trustees, shall have the authority to enter into compromise settlements.

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(a) After the employer or insurer and the administrator of the Subsequent Injury Trust Fund reach an agreement with respect to reimbursement and either the reimbursement agreement is approved by the State Board of Workers' Compensation or the State Board of Workers' Compensation otherwise orders reimbursement pursuant to Code Section 34-9-263, the employer or the insurer shall have a continuing obligation to keep the administrator of the Subsequent Injury Trust Fund informed as to any proposed settlement agreement, pursuant to Code Section 34-9-15, between the employee and the employer or the insurer.

(b) The employer or the insurer shall obtain the approval from the administrator of the Subsequent Injury Trust Fund for any and all settlement agreements between the employee and the employer or the insurer in all cases where a reimbursement agreement between the employer or the insurer and the Subsequent Injury Trust Fund exists prior to the submitting of the settlement agreement to the State Board of Workers' Compensation for approval; provided, however, that if the employer or insurer fails to obtain the approval from the administrator of the Subsequent Injury Trust Fund for such a settlement agreement, but the State Board of Workers' Compensation approves such agreement, the reimbursement agreement between the employer or the insurer and the Subsequent Injury Trust Fund shall become null and void, and the State Board of Workers' Compensation shall, upon the petition of the administrator of the Subsequent Injury Trust Fund, issue an order rescinding the reimbursement agreement; provided, further, that nothing in this Code section shall prohibit the parties from reaching a compromise settlement as to reimbursement from the Subsequent Injury Trust Fund, upon approval of the State Board of Workers' Compensation.

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The administrator of the fund may apportion or deny the employer or insurer reimbursement from the fund for medical expense provided by Code Section 34-9-360 where there are clear and unequivocal facts to establish that the subsequent injury to the permanently impaired employee was not caused by or in any way related to the employee's preexisting disability.  The apportionment by the administrator shall be subject to the approval of the State Board of Workers' Compensation.

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The effective date of this article is March 23, 1977, but it shall apply only to injuries occurring on or after July 1, 1977.

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The fund shall not be bound as to any question of law or fact by reason of an award or an adjudication to which it was not a party.

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The Subsequent Injury Trust Fund shall not be liable for any interest on sums due claiming parties nor shall it be liable for attorney's fees due attorneys of the claiming parties except where it is proven by a preponderance of evidence that the Subsequent Injury Trust Fund has failed or refused to accept a valid claim for reimbursement as provided for under this chapter in whole or in part without reasonable grounds; in such a circumstance, the party seeking reimbursement may be entitled to attorney's fees as provided under subsection (b) of Code Section 34-9-108.

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(a)  The Subsequent Injury Trust Fund shall not reimburse a self-insured employer or an insurer for a subsequent injury for which a claim is made for an injury occurring after June 30, 2006. The Subsequent Injury Trust Fund shall continue to reimburse self-insured employers or insurers for claims for injuries occurring on and prior to June 30, 2006, which qualify for reimbursement.

(b)  Self-insured employers and insurers shall continue to pay assessments pursuant to Code Section 34-9-358 to the extent necessary to fund claims for injuries occurring on and prior to June 30, 2006.

(c)  Upon or in contemplation of the final payment of all claims filed for subsequent injuries for which claims are filed for injuries occurring on and prior to June 30, 2006, the board of trustees shall adopt and implement resolutions providing for the final dissolution of the Subsequent Injury Trust Fund. Such resolutions shall become effective when all claims made for injuries occurring on and prior to June 30, 2006, have been fully paid or otherwise resolved and shall include provisions for:

(1)  The termination of assessments against insurers or self-insurers;

(2)  The pro rata refund of assessments previously collected and unexpended, consistent with the provisions of subsection (d) of Code Section 34-9-358;

(3)  The termination of employment of the employees of the fund or the transfer of employment of any employees to any other state agency desiring to accept them;

(4)  A final accounting of the financial affairs of the fund; and

(5)  The transfer of the books, records, and property of the fund to the custody of the State Board of Workers' Compensation.

Upon the completion of all matters provided for in such resolutions, but not later than December 31, 2020, the Subsequent Injury Trust Fund and the members of its board of trustees shall be discharged from their duties except for such personnel necessary to administer any remaining claims.

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