Legislative Update, July 1998

by William N. Anderson
Hamilton, Westby, Antonowich & Anderson, L.L.C.

This article summarizes the legislative changes to the Workers’ Compensation Act which are effective July 1, 1998. There were no substantial changes this session. Most notably, the TTD and TPD rates did not increase. Please note that this is only a summary and should not be relied on without independent review of the full statute and the corresponding board rule. For specific legal advice on matters relating to the Workers’ Compensation system, please consult an attorney.

1. ADMISSIBILITY OF LABORATORY TEST RESULTS — O.C.G.A. § 34-9-102 will be amended to allow laboratory test result reports to be admitted into evidence so long as they are accompanied by an affidavit from the performing laboratory confirming the report’s authenticity. The legislature also specifically excluded the applicability of O.C.G.A. § 24-3-18 from workers’ compensation cases. This is the provision in the evidence code which provided the admissibility of medical reports in a trial so long as they are provided to an adverse party 60 days prior to trial and that adverse party had the right to cross examine the person who signed the report and to provide rebuttal testimony. This provision was clearly inconsistent with O.C.G.A. § 34-9-102 and the legislature clarified that Section 102 will control in workers’ compensation cases. In regards to the affidavit for laboratory test results, an employer, insurer, or their counsel should provide such an affidavit when requesting the test results from the laboratory. While this is not required by the statute, it should help to save time and cost. (Act 972; HB 1327).

2. AVERAGE WEEKLY WAGE — O.C.G.A. § 34-9-260 will be amended to change the calculation that deals with the wage for Georgia National Guard members serving in active duty to the greater of (1) 7/13th of the monthly pay and allowances of the individual at the time of the injury adjusted for appropriated increases and monthly pay and allowances; or (2) the average weekly wage of the individual and that individual’s other employment at the time of the injury. If the injured worker was employed with more than one employer at the time of the injury, the combined average weekly wage of that individual may be used. (Act 670; SB 592).

3. TEMPORARY PARTIAL DISABILITY BENEFITS — O.C.G.A. § 34-9-104 has been amended regarding calculation of TPD benefits when a change in condition has occurred and the employee has been released to return to light duty work by the authorized treating physician. After July 1, 1998, the amount of TPD benefits to be paid shall be the maximum allowed unless the injured worker is receiving less than the maximum allowed under O.C.G.A. § 34-9-262 in which case the injured worker will continue to receive the same dollar amount as the worker was receiving as temporary total disability income benefits. (Act 972; HB 1327).

The Employer/Insurer needs to make sure to file the 104 form because, even if the employee continues to receive the same dollar amount after the change in condition provided by O.C.G.A. § 34-9-104 as he or she was receiving as temporary total disability income benefits, the Employer/Insurer’s overall exposure has still been reduced by 50 weeks. There is a 350 week cap on temporary partial disability income benefits as opposed to the 400 week cap on temporary total disability income benefits.

4. FRAUDULENT RETENTION OF INCOME BENEFITS — O.C.G.A. § 34-9-21 has been amended by replacing the current penalty provisions with a penalty of a fine not to exceed $10,000.00, and no less than $1,000.00 or one year of imprisonment, or both when an employee is convicted of the misdemeanor of knowingly and willfully receiving and keeping benefits to which that employee is not entitled. (Act 972; HB 1327).

5. CONFORMED PANEL/CHANGE OF PHYSICIAN — O.C.G.A. § 34-9-201 has been amended to delete the 60 day limitation imposed on an employee to unilaterally change physicians when the employer utilizes a conformed panel. The amendment to this section will allow an employee to make a one time unilateral change of physician at anytime during the claim. (Act 972; HB 1327).

This amendment makes the conformed panel rules and procedures consistent with the traditional panel in that an employee may make a one time change of physician within the panel unilaterally. Of course, the same rules remain for any additional changes of the authorized treating physician. Specifically, the change must be by agreement of the parties or by Board order.

6. SUSPENSION OF BENEFITS FOR REFUSAL TO UNDERGO SURGERY/INTERVENING NON-WORK RELATED INJURIES — O.C.G.A. § 34-9-204 has been amended by deleting the language which authorizes a suspension of income benefits for an employee’s unreasonable refusal to undergo surgery. Also, it has been amended to authorize the suspension of income benefits where an intervening non-work related injury breaks the causal chain between the work injury and the employee’s disability. (Act 972; HB 1327).

7. DRUG FREE WORK PLACE — O.C.G.A. § 34-9-412.1 has been enacted to authorize the State Board to certify self-insured employers or employers which are members of group self- insurance pools as drug free work places. O.C.G.A. § 34-9-411 has been amended to add self-insured employers and self-insured employers who are members of group self-insurance pools to the definition section of the drug free work place program. (Act 971; HB 1140).

These changes were enacted so that all employers, whether insured or self-insured, may be certified by the State Board as a drug free work place which would thereby enable them to obtain a reduction in the employer’s contribution to unemployment tax.

8. DEATH BENEFITS — O.C.G.A. § 34-9-265 has been amended to allow insurers/self-insurers who have mistakenly paid death benefits to the State Board to obtain reimbursement of those payments. (Act 972; HB 1327).

9. SELF-INSURED GUARANTY TRUST FUND —O.C.G.A. § 34-9-284 has been amended authorizing the Fund to issue penalties and fines against self-insureds. Additionally, the legislation now requires the Board of Trustees of the Fund to use a security deposit of a participant to pay the workers’ compensation obligation assumed by the Board of Trustees. O.C.G.A. § 34-9-385 now authorizes the State Board to order the Self-Insured Guaranty Trust Fund to pay any contractual arrangement between an attorney and an employee provided that the request is made and all parties are given proper notice and time to object. (Act 972; HB 1327).

10. GROUP SELF INSURANCE FUNDS AUDIT —O.C.G.A. § 34-9-172 has been amended to authorize the Insurance Commissioner to hire a private examiner to perform mandatory audits of group self-insurance funds to verify solvency of the funds. The Fund must still pay the cost of such an examination. (Act 672; SB 656).

William N. Anderson received his BA in 1990 from the University of North Carolina at Charlotte. He received his Juris Doctor from Mercer University in 1993. While in law school, he was a member of the law review (1991-1993), received the Dean’s Public Service Award, and was the Co-Chair of the 1993 National Conference of Law Reviews.

He is a partner with the law firm of Hamilton, Westby, Antonowich & Anderson, where his primary area of practice is workers’ compensation defense. Mr. Anderson often speaks to employers, insurers, and self-insurers regarding workers’ compensation issues. He is the co-founder of GA WorkersComp, and may be reached at bill@gaworkerscomp.com or (404)-872-3500.