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

(a)  The rules of the Board are subject to amendment at any time. The Board may adopt additional rules whenever deemed necessary.  However, except in extraordinary circumstances, rule changes will only be considered and adopted annually, to be effective on July 1 of each year.

(b)  Prior to the adoption, amendment, or repeal of any rule, other than interpretive rules or general statements of policy, the Board shall:

(i)  Provide a copy of the proposed rule to the Chairperson of the Board's Advisory Council.

(ii)  Provide a copy of the proposed rule to the Chairman of the Senate Industry and Labor Committee and the Chairman of the House Industrial Relations Committee.  At the request of the Chairman of the Senate Industry and Labor Committee or the Chairman of the House Industrial Relations Committee, the Board shall hold a hearing on the proposed changes.

(c)  Upon receipt of notice of a work-related injury, the Board shall assign a claim number.  All subsequently filed forms, reports, or any other correspondence or documents related to or concerning such work-related injury shall have affixed thereto the assigned claim number, date of injury, and claimant’s name.  Failure to include this information with the filing may result in the rejection of the filing with the Board.

(d)  Written instructions on all workers' compensation forms are deemed to be included in these rules.

(e)  The Board shall have the power to issue writs of fieri facias in order to collect fines imposed by any member of the Board or any Administrative Law Judge against any person.  Such writs may be enforced in the same manner as a similar writ issued by a superior court.

(f)  Pleadings, forms, documents, or other filings may be filed with the Board by facsimile transmission or by electronic mail only to Board designated ICMS fax numbers or electronic mail addresses.  No pleadings, forms, documents or other filings, with the exception of a notice of claim filed on the final day allowed pursuant to statute, will be accepted by facsimile transmission or electronic mail to non-designated ICMS fax or numbers or electronic mail addresses unless specifically permitted or requested by the Board.  The name of the person permitting or requesting the facsimile transmission or electronic mail shall be provided simultaneously.  The certificate of service, showing concurrent service upon the opposing party by facsimile transmission or electronic mail, if available, shall be a part of any facsimile transmission or electronic mail.  Failure to include a certificate of service shall invalidate the filing.  All facsimiles or electronic mail transmissions must be identical to the originals and must be legible.  The Board, within its discretion, may transmit documents by facsimile or electronic transmission.

(g)

(1)  Pursuant to Code Section 10-12-2 et seq, when a signature is required for any electronic filing with the Board, the party or attorney shall type his or her name in the appropriate fields on the document or Board form submitted for filing.  Submission of a filing in this manner shall constitute evidence of legal signature by those individuals whose names appear on the filing.

(2)  Any party or attorney challenging the authenticity of an electronically filed document or electronic signature on that filing must file an objection to the document within 15 days of receiving the notice of the electronic filing.  The burden shall be on the party challenging the authenticity of the signature.

(h)  In order to create a workers’ compensation ICMS file at the Board, a Form WC-1 or Form WC-14 shall be filed with the Board.  Any document or form filed with the Board, when either a Form WC-1 or Form WC-14 has not been previously filed, shall be rejected by the Board.

(i)  Only the original of any form, document, or other correspondence shall be filed with the Board. Duplicate originals shall not be filed with the Board.  Where providing a courtesy copy to an Administrative Law Judge or the Board, that document shall be identified clearly and prominently as a courtesy copy.

(j)  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.

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(a)  To unilaterally convert the employee's income benefits from temporary total disability income benefits to temporary partial disability income benefits under O.C.G.A. § 34-9-104(a)(2), the employer/insurer shall serve the employee and the employee's attorney a Form WC-104 no later than 60 days from the date the employee was released to work with restrictions by the employee's authorized treating physician. In addition, the employer/insurer shall attach to the Form WC-104 the medical report demonstrating the employee is capable of performing work with restrictions.

(b)  After serving the employee and the employee's attorney sufficient and timely notice under section (a), if the employee has been released to work with restrictions for 52 consecutive weeks or 78 aggregate weeks, the employer/insurer may unilaterally convert the employee's income benefits from temporary total disability income benefits to temporary partial disability income benefits by filing a Form WC-2 with the Board.  When filing the Form WC-2, the employer/insurer shall attach the Form WC-104 and attached medical report. Copies of all filings shall be served on the employee and the employee's attorney, if represented.

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(a)  Payment shall be made to the address of record or account specified by the claimant, in cash, by negotiable instrument, or upon agreement of the parties by electronic transfer.  Payment by negotiable instrument shall denote the pay period which the payment represents.  Mailed payments shall be sent to the claimant in accordance with the procedure prescribed by O.C.G.A. § 34-9-221(b).

(b)  For the purpose of calculating time periods, the date of injury shall be deemed to be the date of disability and a week shall be deemed to be seven calendar days.  See Rule 220(a).

(c)  In all cases, including payment of salary for compensable disability, upon making the first payment and upon suspension of payment, Forms WC-1 or WC-2 or, in case of death, Form WC-2A shall be filed with the Board.  If the Forms WC-1 or WC-2 show payment is less than the maximum weekly benefit under either O.C.G.A. § 34-9-261 or O.C.G.A. § 34-9-262, as applicable, a Form WC-6 or other sufficient explanation shall be filed with the Board with the accompanying Form WC-1 or WC-2.  To report any change in weekly benefits, payment of salary during period of compensability, classification, or rating of disability, a Form WC-2 shall be filed with the Board.  An injured employee who receives regular wages during disability shall not be entitled to weekly benefits for the same period.

(d)  To controvert in whole or in part the right to income benefits or other compensation, use Forms WC-1 or WC-3.  Failure to file the Forms WC-1 or WC-3 before the 21st day after knowledge of the injury or death may subject the employer/insurer to an assessment of penalties or attorney's fees. See paragraphs (2) and (3) of subsection (b) of O.C.G.A. § 34-9-108.

(e)  Any penalty for late payment shall be stated as a separate item on Forms WC-1, WC-2 or WC-2A.

(f)  Accrued benefits payable under the terms of an award are due on the date the award is issued.

(g)  Within 30 days after final payment of compensation, a final Form WC-4 shall be filed with the Board.

(h)  Subsection (h) of O.C.G.A. § 34-9-221 applies only when income benefits are being paid under Forms WC-2, WC-2A, or subsection B of Form WC-1.  To suspend payment on the ground of a change in condition, file Forms WC-2 or WC-2A.

(1)  A Form WC-3 shall not be used to suspend benefits where the only issue is length of disability.  In these cases, suspend benefits by filing a Form WC-2 or follow procedure outlined in Rule 240.  If liability is denied subsequent to commencement of payment, but within 60 days of due date of first payment of compensation, file Form WC-3 in addition to a Form WC-2.

(2)  If income benefits have been continued for more than 60 days after the due date of first payment of compensation, benefits may be suspended only on the grounds of a change in condition or newly discovered evidence.  File Forms WC-2 or WC-2A.  When controverting a claim based on newly discovered evidence, file Form WC-3 also.

(i)

(1)  Suspension of benefits at any time on the ground of change in condition requires advance notice of 10 days unless the employee has actually returned to work.

(2)  The date of filing with the Board, in the absence of compelling evidence to the contrary, shall be considered the date of notice.

(3)  The date affixed by the Board to Forms WC-2 or WC-2A, in the absence of compelling evidence to the contrary, shall be considered the date of notice.

(4)  When suspending benefits for release to return to work without restrictions, the employer/insurer shall attach to the Form WC-2 a copy of the supporting medical report from employee's authorized treating physician, who must have examined the employee within sixty days of the effective date of the release.

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(a)  A petition for the Board to appoint a temporary guardian to bring or defend an action under this chapter and/or receive and administer workers' compensation benefits for a minor or incompetent adult should be filed with the Board at the time the WC-14 is filed.  In the case of a stipulated settlement, the guardianship petition should be filed prior to or at the time of the filing of the stipulated settlement agreement.

If payment to the minor or incompetent adult is pursuant to a WC-2, the guardianship petition should be filed with the Board and a guardian appointed prior to the payment of any monetary benefits to them.

(b)  Any applicant for guardianship shall consent to a criminal history record check at the time the petition for guardianship is submitted to the Board via a Form WC-226(a) or Form WC-226(b).  In addition, the applicant shall attach supporting documentation necessary to process the request.

(c)  If a petition is filed on behalf of a minor child or children, the petitioner shall inform, in writing, the Board whether the minor child or children reside with the petitioner.

(d)  If a petition is filed with the Probate Court or any other court, the parties are directed to immediately notify, in writing, the Board.  If the Probate Court or any other court appoints a guardian, the parties shall file a copy of the order with the Board.

(e)

(1)  All objections shall be made on Form WC-102D.  When attaching documents as evidence to objections, do not use tabs to separate documents.  Any party or attorney filing a request 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.

(2)  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; and

(3)  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.

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(a)  For suspension and reinstatement of income benefits by interlocutory order generally, see Board Rule 102D.

(b)  When an employee unjustifiably refuses to accept employment which has been approved by the authorized treating physician(s) suitable to his/her impaired condition and offered to the employee in writing, the employer/insurer may suspend payment of income benefits to that employee without an order of the Board in the following manner:

(1)  File with the Board a Form WC-2 and Form WC-240 certifying that at least ten days before the employee was required to report for work he/she was notified on the completed Form WC-240 mailed to the employee and his/her attorney that there was a suitable job available, that it was approved by his/her authorized treating physician(s) after an examination within the last 60 days, and refusal to attempt to perform the job would result in the suspension of payment of weekly income benefits to the employee.  The employer/insurer shall provide to the employee and legal counsel a copy of any job description/analysis in reference to subparagraph (2)(i), (ii) and (iii) at the time of submission to the authorized treating physician(s).

(2)  Attached to the Form WC-240 shall be:

(i)  A description of the essential job duties to be performed, including the hours to be worked, the rate of payment, and a description of the essential tasks to be performed;

(ii)  The written approval of the authorized treating physician(s) of the essential job duties to be performed;

(iii)  The location of the job, with the date and time that the employee is to report to work.

Attaching a properly completed Form WC-240A will satisfy the requirements for making a proper offer of employment as set forth herein.

(3)  If the employee refuses to attempt to perform the proffered job after receiving the above notification, the employer/insurer shall be authorized to suspend payment of income benefits to the employee effective the date that they unjustifiably refused to report to work.

(c)  Should the employee accept the employment offered by the employer/insurer but fail to continue working for more than the prescribed fifteen (15) scheduled work days, the employer/insurer, whether or not they have sent a WC-240, shall immediately reinstate payment of income benefits and shall file with the Board and serve upon the employee the appropriate Form WC-2 reflecting the reinstatement of income benefits.

(i)  Failure to immediately reinstate benefits pursuant to Board Rule 240(c), shall result in the waiver of the employer/insurer's defense of the suitability of employment for the period of time the employer/insurer did not pay the employee's weekly income benefits when due.

(ii)  When the employer/insurer immediately reinstates benefits pursuant to Board Rule 240(c), the employer/insurer are entitled to seek reimbursement of such benefits at a hearing addressing the suitability of the proffered employment.

(d)  When calculating the fifteen (15) scheduled work days provided by statute, the employer/insurer shall include as a work day each day or part thereof during which the employee is scheduled to perform his/her job duties.

(e)  The employer/insurer shall also be entitled to suspend payment of weekly benefits to the employee pending a hearing by an order of the Board finding an unjustifiable refusal of the employee to accept employment procured for him/her suitable to his/her capacity.  A motion requesting this order may be made simultaneously with the filing of a request for hearing or at any time during the pendency of the hearing and award and shall be filed on Form WC-102D, and must be accompanied by an affidavit from the employer setting forth that suitable employment has been offered to the employee as set forth in (b) above, the offer is continuing, and analysis of the job is attached.  The employer/insurer shall have the employee examined by the authorized treating physician(s) within 60 days prior to this request for suspension of income benefits.  No request for suspension of income benefits for failure to accept suitable employment shall be granted unless the authorized treating physician(s) approve(s) the job offered by the employer/insurer.  A party who objects to this motion shall file their response on Form WC-102D 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.

(f)  The Board may also issue an interlocutory order reinstating weekly income benefits pending a hearing.  A party making this motion shall file Form WC-102D, and shall serve a copy, along with a copy of supporting documents, on all counsel and unrepresented parties.  A motion requesting this order may be made simultaneously with the filing of a request for hearing based on a change in condition or at any time during the pendency of the hearing and award and must be accompanied by an affidavit of the employee setting forth his contentions, along with current medical records when applicable.  A party who objects to this motion shall file Form WC-102D with the Board within 15 days of the date of the Certificate of Service on Form WC-102D and shall serve a copy on all counsel and unrepresented parties.

(g)  In the event the employee's weekly benefits are suspended pursuant to O.C.G.A. §  34-9-240(b)(2), the employer/insurer shall comply with O.C.G.A. § 34-9-263 and Board Rule 263.

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File Form WC-2 to commence, suspend, or amend the weekly benefit payment under O.C.G.A. § 34-9-261, O.C.G.A. § 34-9-262, or O.C.G.A. § 34-9-263, including payment of salary for compensability, or when a change in disability status occurs after Form WC-1 has been properly filed with the Board.  File when suspending O.C.G.A. § 34-9-261 benefits and commencing O.C.G.A. § 34-9-262 benefits pursuant to § 34-9-104(a)(2).  Mail a copy of the Form WC-2 and attachments, if any, to the employee and their attorney, if one has been retained.  See Rule 221.  If the last payment is intended to close the case, file final Form WC-4.

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Use in death case in lieu of Form WC-2.  Use when change in dependency occurs.  Use this form when making a payment to the State of Georgia for no dependents.

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The employer/insurer shall use this form to notify an employee of an offer of employment which is suitable to his/her impaired condition as required by O.C.G.A. § 34-9-240, and shall provide it to the employee and his/her attorney at least 10 days prior to the date the employee is scheduled to return to work.  File this form as an attachment to a Form WC-2 when unilaterally suspending income benefits under Board Rule 240(b)(1)-(2).

• Form WC-240. Notice to Employee of Offer of Suitable Employment
  

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An employer/insurer may use this form in conjunction with a Form WC-240 to provide a detailed job description when notifying an employee of an offer of employment which is suitable to his/her impaired condition as required by O.C.G.A. § 34-9-240, and shall provide it to the employee and his/her attorney at least 10 days prior to the date the employee is scheduled to return to work.  Attach this form with a Form WC-240, and file it with the Form WC-240 as an attachment to a Form WC-2 when unilaterally suspending income benefits under Board Rule 240(b)(1)-(2).

• Form WC-240a. Job Analysis

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(a)  Income benefits shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability is controverted by the employer.  Payments shall be made in cash, by negotiable instrument, or, upon agreement of the parties, by electronic funds transfer.

(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; provided, however, that the board may, in its discretion, authorize payments to be made in different installments if it determines that this would be beneficial to all parties concerned.  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.  Such weekly payments shall be considered to be paid when due at the time they are made by electronic funds transfer to an account specified by the employee.

(c)  Upon making the first payment and upon suspension of payment for any cause, the employer shall immediately notify the board and the employee, in accordance with forms prescribed by the board, that payment of income benefits has begun or has been suspended, as the case may be.

(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 controverted.

(e)  If any income benefits payable without an award are not paid when due, there shall be added to the accrued income benefits an amount equal to 15 percent thereof, which shall be paid at the same time as, but in addition to, the accrued income benefits unless notice is filed under subsection (d) of this Code section or unless this nonpayment is excused by the board after a showing by the employer that owing to conditions beyond control of the employer the income benefits could not be paid within the period prescribed.

(f)  If income benefits payable under the terms of an award are not paid within 20 days after becoming due, there shall be added to the accrued income benefits an amount equal to 20 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.

(g)  Within 30 days after final payment of compensation, the employer shall send to the board a notice in accordance with the form prescribed by the board, stating that final payment has been made and stating the total amount of compensation paid, the name of the employee and any other person to whom compensation has been paid, the date of the injury or death, and the date to which income benefits have been paid.

(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 60 days of the due date of first payment of compensation.

(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 or beneficiary a notice to controvert the claim in the manner prescribed by the board.

(j)  The board or any administrative law judge shall issue such orders as may be necessary to enforce the penalty provisions of this Code section.

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