By: Jordan Goldring, Junior Partner, Atlanta Office
Georgia Case Law Update: Recent Court of Appeals Opinion – Changing (?) the Rules on WC-104’s
The Georgia Court of Appeals recently ruled in a case involving what constitutes a valid WC-104 under OCGA § 34-9-104(a) and Board Rule 104(a) in Lamar v. Delta Airlines, Inc. This is important and surprising because it is a departure from what practitioners in workers compensation understood. The court found that the WC-104 filed by the Employer/Insurer was invalid based on a technical argument. The Claimant injured his lower back at work and was out of work receiving TTD benefits. In a medical note, the ATP listed a restriction of “no lifting more than 15 pounds” under a section titled “patient instructions.” Presuming these to be work restrictions, the Employer/Insurer filed a WC-104 and subsequently converted the Claimant’s TTD benefits to TPD benefits 52 weeks later. The Claimant objected and filed a Request for Hearing challenging the validity of the WC-104.
The Administrative Law Judge ruled in favor of the Employer/Insurer and found the WC-104 was valid because the ATP’s report detailing the work restrictions was attached to the form. Thereafter, both the Appellate Division of the Board and the Superior Court upheld the ALJ’s Award.
However, the Court of Appeals accepted the Claimant’s application for review. Specifically, the Claimant argues the ATP’s medical report attached to the WC-104 form did not demonstrate his was capable of performing light duty work under OCGA § 34-9-104(a) and Board Rule 104(a), and the Court of Appeals agreed. What?!!?
In reading the statute, the Court of Appeals decided an Employer/Insurer can unilaterally convert TTD to TPD benefits via WC-104 only if it attached a medical report that on its face demonstrates the Claimant is “capable of performing work with restrictions.” While the Court of Appeals discussed that they relied on the fact the ATP’s note attached to the WC-104 may have relied on work restrictions previously assigned outside the 60 day statutory window for filing the WC-104, the bigger concern is the Court of Appeal’s opinion that the ATP’s “patient instructions” did not suffice as work restrictions. Specifically, the Court of Appeals reasoned that absent “a more specific statement regarding Lamar’s job duties and his ability to perform other tasks, the restatement of a restriction upon lifting items heavier than 15 pounds, by itself, does not constitute a release to return to light duty work under the circumstances of this case.” The case was then remanded back down to the Board to consider whether attorney’s fees should be awarded to the Claimant.
So, what does this mean in practice? First and foremost, employers and insurers need to ensure that the ATP is providing either a very explicitly titled “work status report” after each appointment that specifies the restrictions being given apply to work. Additionally, it is likely the best practice to also ensure the ATP is not merely stating “continue light duty” or “same restrictions” as urgent care (or the referring/previous provider), so there can be no question the restrictions are in fact being assigned within the 60 days required under OCGA § 34-9-104(a) and Board Rule 104(a).
We are optimistic (or at least hopeful) the Supreme Court will grant certiorari and reverse the Court of Appeals. In the meantime, we anticipate a wave of challenged WC-104s and litigation over the validity of TTD to TPD conversions.
Sincerely,
Jordan Goldring | Junior Partner