Recap of 2013 Board Rule Changes and Preliminary Proposals for Legislative Changes in 2014

by Jennifer M. Smith, Esq.

Administrative Law Judge Viola Drew discussed the recent 2013 Board Rule changes and one significant legislative proposal for 2014.

Rule Changes
Judge Drew discussed the following rule changes, which also have a significant impact on employers and insurers:

• Filing of Form WC-104 with the Board, Effective January 1, 2014 – Rule 104 is being amended to require Employers/ Insurers to file form WC-104, “Notice to Employee of Medical Release to Return to Work with Restrictions”, at the same time the form is served on the employee and the employee’s attorney. This is a change from the current rule whereby the form is filed contemporaneously with the WC-2 when converting benefits from TTD to TPD after the WC-104 has been in place for 52 consecutive or 78 aggregate weeks of light duty.

• Parties at Interest – Can present evidence at hearing, claims must be resolved prior to approval of settlements and no liability stipulated settlements must address outstanding medical expenses: The Board rules were amended so a party at interest is permitted to present evidence of its claimed interest at the hearing. In addition, the Board will not approve settlements until party at interest claims are resolved. On no liability stipulated settlements, a statement specifying the party responsible for outstanding medical expenses must be included. Parties at Interest are usually doctors’ offices or private health insurance carriers who file either a WC-206 or WC-244, “Notice of Intent to become a Party at Interest”, because the party has made payments or has covered the cost of medical treatment for a person who has filed a workers’ compensation claim and the party seeks reimbursement for those payments / services.

• Return to Work Offers – Rule 240 and unilateral suspension of benefits for failure to accept and attempt a suitable job: Rule 240 was amended to reflect the changes to O.C.G.A. § 34-2-240 that affect the burden of proof for unilateral suspension. If an employee attempts a light duty job for less than 8 cumulative hours or one scheduled work day or the employee refuses the light duty job altogether, then the employer may unilaterally suspend benefits with the filing of the appropriate form (WC-2) and supporting return to light duty work documentation. The burden shall then shift to the employee to prove entitlement of continuing benefits. If, however, an employee attempts the light duty job for at least 8 cumulative hours or one scheduled work day, whichever is greater, but is unable to perform the job for more than 15 working days, then weekly benefits shall be immediately reinstated. The burden shall be on the employer to prove that the employee is not entitled to continuing benefits.