Recent Georgia Court of Appeals Case Interpreting O.C.G.A. §34-9-104 and Board Rule 104, City of Atlanta v. Sumlin (A02A1232)

A three member panel of the Georgia Court of Appeals issued an opinion on November 14, 2002 which clarifies the language of O.C.G.A. §34-9-104 and how it must be implemented in order to reduce an employee’s benefits from temporary total disability benefits to temporary partial disability benefits. The case is the City of Atlanta v. Clarence Sumlin (—- S.E.2d, ——, ——-, Georgia Court of Appeals —–, 2002). 

O.C.G.A. §34-9-104 and the accompanying Board Rule 104 are the provisions of the Georgia Workers’ Compensation Act which allow an employer, with proper notice, to reduce an employee from temporary total down to temporary partial disability benefits. In order to accomplish this, the employer must prove that the authorized treating physician released the employee to return to work with restrictions and that within 60 days of that release, the employee and the employee’s attorney were provided with notice of this release and an accompanying WC-104 form indicating that the employee’s benefits will be reduced after 52 consecutive weeks or 78 aggregate weeks of being released to return to work light duty.

O.C.G.A. §34-9-104(a)(2) provides in relevant part that:

When an injury is not catastrophic, as defined in subsection (g) of Code Section 34-9-200.1, and the employee is not working, the Board shall determine that a change in condition for the better has occurred and the employee shall be entitled to payment of benefits for partial disability in accordance with Code Section 34-9-262 if it is determined that the employee has been capable of performing work with limitations or restrictions for 52 consecutive weeks. Within 60 days of the employee’s release to return to work with restrictions or limitations, the employee shall receive notice from the employer on a form provided by the Board that will inform the employee that he or she has been released to work with limitations or restrictions, will include an explanation of the limitations or restrictions, and will inform the employee of the general terms of this code section. In no event shall an employee be eligible for more than 78 aggregate weeks of benefits for total disability while such employee is capable of performing work with limitations or restrictions . . . . (See O.C.G.A. §34-9-104).

The issue which would arise in cases would be where an employer never filed a WC-104 form and provided notice to the employee of the light duty release or failed to do so within 60 days of the light duty release. Most persons were in agreement that failure to do this meant that an employer could not reduce an employee from TTD benefits down to TPD benefits after 52 consecutive weeks of a light duty release. However, persons disagreed as to the meaning of the last quoted sentence above…

In no event shall an employee be eligible for more than 78 aggregate weeks of benefits for total disability while such employee is capable of performing work with limitations or restrictions…

Employers would take the position that this language was mandatory and that the ability to reduce an employee who had been released to return to work with restrictions after 78 aggregate weeks was not contingent upon providing the employee with notice of a light duty release within 60 days of the release being issued by the authorized treating physician. From an employer’s point of view, this appeared to be reasonable as this language is mandatory and arguably it would appear as though the legislature made a distinction between having to provide notice if an employer wished to reduce benefits after 52 consecutive weeks as opposed to after 78 aggregate weeks. However, Board Rule 104 made clear the Georgia State Board’s position on this issue was that proper notice was required in order to reduce under either the 52 consecutive weeks or 78 aggregate week scenarios. 

The Court of Appeals phrased the primary issue in this case as whether the 78 week limit on temporary total disability benefits is conditioned upon compliance with the provisions for notice from the employer to the employee within 60 days of the employee’s release to return to work with restrictions or limitations. The Court of Appeals has made clear that the reduction is conditioned on compliance with the notice provision.

As such, employers, insurers and servicing agents must pay close attention to when releases to return to work without restrictions are issued in cases where an employee is drawing temporary disability benefits. They must receive such releases within 60 days of the actual release to return to work with restrictions. That medical release, specifying the restrictions, must then be attached to the WC-104 form which must be properly completed and the two must be sent to the employee and to the employee’s attorney at the same time these forms are filed with the State Board of Workers’ Compensation. I would suggest that these forms be sent via certified mail with a return receipt requested so that proof of service and actual notice can later be proven.

Employers must also keep in mind that once they have properly complied with the notice requirements of O.C.G.A. §34-9-104 and Board Rule 104, when the time comes for the reduction from temporary total down to temporary partial disability benefits, the employer must file a form WC-2 and must attach a copy of the authorized treating physician’s report of the release to return to work with restrictions, and must check off the appropriate line on the WC-2 form indicating that the injury is not catastrophic, that the employee has been medically released to return to work with restrictions for at least 52 consecutive weeks or 78 aggregate weeks and that form WC-104 with the attached medical was sent to the employee no later than 60 days after the date of the release. It is suggested that attaching the original WC-104 form and medical report to the WC-2 would be prudent. In addition, employers are advised that the front and back of the WC-2 form must be set to the employee and to the employee’s attorney. Again, it is recommended that the WC-2 and 104 forms with the attached medical records be sent via certified mail, return receipt requested.