Winter 2007 Ann Bishop, Editor SECTION NEWSLETTER

Aconservative estimate of the number of illegal aliensliving in Georgia is between 228,000 and 250,000.The majority of illegal aliens work in low paying

jobs that require the performance of heavy physical laborand are often inherently dangerous, such as food process-ing and construction work. Consequently, Georgia’s work-ers’ compensation attorneys have seen a rise in claims filedby illegal aliens over the last several years. This articleexamines the effect of an injured employee’s illegal statuson his or her entitlement to workers’ compensation bene-fits under the Georgia Workers’ Compensation Act(GWCA). The article also considers the effect of the newlyenacted state legislation on immigration on the workers’compensation system.

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It has been established that a worker’s illegal alien statusitself does not bar the workers’ right to receive workers’compensation benefits under the GWCA. In the past,employers tried to invoke traditional contract principles tovoid the employment relationship, and also argued that fed-eral law preempts state law on the entitlement of illegalaliens to workers’ compensation benefits. See DynastySample Co. v. Beltran, 224 Ga. App. 90, 479 S.E. 2d 773 (1996);Continental PET Technologies, Inc. v Palacias, 269 Ga. App.561, 604 S.E.2d 627 (2004); Earth First Grading v. Gutierrez,270 Ga. App. 328, 606 S.E. 2d 332 (2004); Wet Walls, Inc. v.Ledezma, 266 Ga. App. 685, 598 S.E.2d 60 (2004).

In Dynasty Sample Co. v. Beltran, the employer tried touse traditional contract principles to show that theemployment contract between Beltran, an illegal alien, andthe employer was void. The Court of Appeals dismissedthe employer’s argument and held that traditional contractprinciples are not always applicable in determiningwhether a person is an employee for the purposes ofreceiving benefits under the GWCA. The court pointed outthat the GWCA has long covered illegal workers and cited

O.C.G.A. §34-9-1(2), in which the definition of “employee”includes minors working under contracts that are illegalbased on child labor laws, which traditionally would bevoid or voidable.

In Continental PET Technologies, Inc. v Palacias, theemployer, Continental, once again tried to invoke tradi-tional contract principles to bar Palacias, an illegal alien,from receiving workers’ compensation benefits.Specifically, the employer argued that the ImmigrationReform and Control Act (IRCA) of 1986 makes it unlawfulto employ an illegal alien. Therefore, the employment con-tract between Palacias and the employer was void. On thisbasis, the employer argued that Palacias was never anemployee of Continental. The Court of Appeals rejectedthe employer’s argument on the basis that O.C.G.A. §34-9-1 provides that an employee includes “every person in theservice of another under any contract of hire” and heldthat “every person” would necessary include illegal aliens.The court thus found that Palacias was an employee ofContinental at the time of her accident.

In Wet Walls, Inc. v. Ledezma, Ledezma was hurt on thejob and received income benefits. The employer stoppedpaying benefits after he was incarcerated, deported fromthe country, and he was banned from returning to the U.S.Ledezma then filed a claim for the reinstatement of hisincome benefits. The employer argued that he was barredfrom seeking workers’ compensation benefits underGWCA because federal law preempts Georgia law on thequestion whether or not an illegal alien may receive work-ers’ compensation benefits.

The Court of Appeals explained that under the preemp-tion doctrine, Congress may express its intent to preemptstate law (1) by expressly defining the extent of preemp-tion; (2) by implied preemption, i.e. by regulating the areaso pervasively that an intent to preempt the entire fieldmay be inferred; or (3) by enacting a law that directly con-

Illegal Aliens and the GeorgiaWorkers’ Compensation Act:The Employer/Insurer’s PerspectiveBy Bernadett RosszerDrew, Eckl & Farnham

See Employer Perspective page 3

As I write these comments, the ICLE Seminar at St.Simon’s is but a memory. Those members unable toattend missed three days of absolutely fantastic

weather including a beautiful and gigantic full moon! Youalso missed three days of very interesting, informative andentertaining topics and speakers. Attendance reached anall-time high and judging from the responses received, theseminar was a tremendous success.

The seminar co-chairs, Judge Melodie Belcher, B. KayeKatz-Flexer and Phil Eddings, deserve a great deal of cred-it and thanks for a superb job. (Ann Bishop, you will havea hard time topping this year’s program when you are sec-tion chair next year!)

The State Bar’s Midyear Meeting, traditionally held inJanuary in Atlanta, is being held this year in Savannahinstead. The Workers’ Compensation Section had no inputinto the location of the meeting. The Executive Committeeof our section thought not enough of our section memberswould be able to attend this year and scrapped plans tohave our traditional meeting where a cocktail party wouldalways seem to break out! The cost of the meeting andsocial gathering is rather high and with very few expectedattendees, it was felt simply not to be a good or soundidea.

Lastly, the Bar’s 2007 Annual Meeting will be held June14-17 in Ponte Verde Beach, Fla., at the Sawgrass MarriottResort. My experience is that “Compers” do not travelwell! However, I would ask for any input from memberswho plan to attend and want to have a meeting, lunch orreception. If the interest is there, we can certainly partici-pate at the Annual Meeting.

Please feel free to contact me by telephone 404-325-2281,e-mail (tvhanofee@mindspring.com) or in person. WC

2 Workers’ Compensation Law Section

Comments From the ChairmanBy Timothy V. Hanofeetvhanofee@mindspring.com

In this IssuePage 1Illegal Aliens and the Georgia Workers’Compensation Act:The Employer/Insurer’s Perspective

Page 2Comments from the Chairman

Page 4ICMS Update — Phase II

Page 6Recent Appellate Decisions

Page 9From Beltran to Martines:llegal Immigrants and Workers’ Compensationfrom the Claimant’s Perspective

Page 11Altered or Terminated By Law

Page 122006 Workers’ Compensation Statutory andRule Changes

Page 15RSD: A Misunderstood Diagnosis

flicts with state law. The Court ofAppeals found that none of the abovecriterions were met in the casebecause there is nothing in federallaw barring illegal aliens from receiv-ing workers’ compensation benefits.Therefore, federal law does not pre-empt state law on this issue. See alsoContinental, 269 Ga. App. 561; andEarth First, 270 Ga. App. 328 (barringillegal aliens from receiving workers’compensation benefits would rewardemployers for hiring illegal aliens).

Employers also argued that anundocumented worker is analogous toan incarcerated person who cannotreceive benefits by law, because neithercould “meaningfully accept a job evenit were offered.” In Earth First Gradingv. Gutierrez, the court rejected thisargument because under the particularfacts of that case, the employee’s ille-gal status did not render him unable to“meaningfully” accept employment.Namely, Gutierrez’s illegal status wasunknown until after the period forwhich he sought benefits and he actu-ally performed work for the employerin the past, despite his illegal status.

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Employers also attempted to use the“Rycroft defense” to invalidate theemployment relationship and bar theillegal alien’s right to compensation.In Georgia Elec. Co. v. Rycroft, 259 Ga.155, 378 S.E.2d 111 (1989), theSupreme Court of Georgia held thatwhen an employee fraudulently mis-represents his pre-employment physicalcondition during hiring, this may voidthe contractual employment relationshipand prevent the employee from obtain-ing workers’ compensation benefits. TheCourt laid out a three-prong test: (1) theemployee knowingly and willfully madea false representation when appliedfor work; (2) the employer relied onthe false misrepresentation, which was asubstantial factor in the decision tohire the employee; and (3) there is acausal connection between the false mis-representation and the on-the-job injury.

In Dynasty Sample Co. v. Beltran,Beltran, an illegal alien, obtained a jobwith Dynasty using false documenta-

tion. He later severed two fingers inan on-the-job accident and soughtworkers’ compensation benefits.Dynasty discovered that Beltranintentionally misrepresented hisimmigration status when he appliedfor the job. Therefore, the employerdenied the claim asserting the Rycroftdefense. The Court of Appeals point-ed out that Rycroft dealt specificallywith misrepresentations regarding anemployee’s pre-existing physical con-dition, not the employee’s immigra-tion status. However, in the absenceof clear legislative direction on thisissue to the contrary, the court con-cluded that the three-prong test inRycroft is also applicable to othertypes of fraud in the inducement,unless the fraud is of a type specifical-ly addressed by the GWCA. The courtawarded income benefits to Beltranbecause the employer could not meetthe third prong of the Rycroft defense,i.e. there was no causal connectionbetween Beltran’s illegal status andhis accident. See also Continental, 269Ga. App. 561.

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The most recent case regarding ille-gal aliens is Martines v. Worley & SonsConstruction, A05A1985 (Feb. 14,2006). While working for Worley &Sons Construction, Martines sufferedan injury to his left foot. Sometimelater his physician released him torestricted duty work. His employeroffered him a light duty job as a truckdriver, which was within his restric-tions. Martines accepted the job, butwhen he reported to work, he wasasked to show his driver’s license anddocumentation that he was in thecountry legally. At that time, Martinesrevealed he could not produce aGeorgia driver’s license because hewas an illegal alien. TheAdministrative Law Judge (ALJ)found that the job offered to Martineswas not suitable because he did notpossess the required driver’s license.

The case ultimately found its way tothe Georgia Court of Appeals. Thecourt found that the job offered by theemployer was suitable to Martines’physical capacity and found that hisinability to accept the profferedemployment was not justified because

it was not related to his physicalcapacity or to his ability to perform thejob. Martines’ could not accept the jobdue to his legal inability to obtain aGeorgia driver’s license, which was theresult of his personal choice to enter thecountry illegally. The Supreme Court ofGeorgia recently denied the appellant’smotion for writ of certiorari.

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On April 17, 2006, Gov. Sonny Perduesigned into law the Georgia Securityand Immigration Compliance Act(SICA). SICA includes provisionsrequiring residents 18 years of age orolder who are seeking state or federalsocial welfare benefits administeredby a state agency to prove their legalstatus (with come exceptions, such asemergency medical care, prenatalcare, and immunizations of children).Furthermore, SICA also requires thatcontractors and subcontractors work-ing on state contracts verify the lawfulemployment status of newly hiredemployees. SICA has no direct effecton the GWCA because workers’ com-pensation benefits do not constitutestate or federal welfare benefitsbecause the employers and insurerspay the benefits. Likewise, there isnothing in the new law that preventsattorneys from representing illegalaliens in workers’ compensationclaims or immigration matters.

The above-cited cases demonstratethat an employee’s illegal alien statusitself does not bar his or her right tocompensation under the GWCA, evenif the illegal status was not disclosedat the time the employee was hired.However, under the newly decidedMartines v. Worley & Sons Construction,an illegal alien’s inability to acceptsuitable employment due to his or herillegal status may constitute a refusalof suitable employment and couldresult in the suspension of theemployee’s income benefits. Eventhough in Martines, the Court ofAppeals based its decision on theemployee’s lack of a valid Georgia dri-ver’s license, the ruling implies thatan employee’s inability to produce avalid work permit itself could resultin the suspension of the employee’sincome benefits. WC

Winter 2007 3

Employer PerspectiveContinued from page 1

4 Workers’ Compensation Law Section

After approximately two years of meetings, flowcharts, analysis, etc., the State Board of Workers’Compensation successfully implemented the new

ICMS electronic document management system on Oct. 1,2005. This system is being implemented in four phases: (1)Claims Processing—document capture; (2) TrialManagement; (3) Web filing and access to the Board fileover the web by parties and attorneys in a claim; and (4)Insurer/TPA EDI filing. We have made great progress andscanned more than 500,000 documents in the past 12months. While we have experienced some unexpectedissues and had a few growing pains, we already see signsof greatness on our horizon.

PPhhaassee IIII

On Aug. 21, the Board successfully implemented PhaseII of ICMS. Some of the functions of ICMS Phase II forBoard staff are:

Electronic processing of mediation/hearing requestsAutomated case assignment to judgesElectronic calendars for ADR, Hearing, and

Appellate DivisionAutomated scheduling of hearings/mediationsElectronic generation of judicial orders/awards with

electronic signatureNotices of Hearing/Mediation/Oral Argument and

awards/orders are being sent out by email. All of thesedocuments are sent as PDFs. In addition, as many of youhave seen, we are now using electronic signatures. If an e-mail containing an order, award, notice, etc. fails, thesender at the Board receives an email that such email con-taining the order, award, notice, etc. failed. In such circum-stances, the Board will mail a copy of such order, award,notice, etc.

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The automated system generates a claim number foreach new claim. (e.g. 2005-001522, 2006-001523). It is a 10-digit number with the first four digits identifying the yearthe claim is created at the Board (not the year of theinjury)(i.e. when a Form WC-1 or WC-14 is filed). Alwaysremember, only a Form WC-1 or Form WC-14 will actuallycreate a new electronic file.

This number is a unique identifier for the claim. TheBoard will no longer use social security numbers onnotices or awards/orders. The SSN is no longer the Board’sClaim Number.

This “Board Claim Number” must appear on every form ordocument filed by the parties/attorneys. See Board Rule 60 (c).

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Please note that if there are multiple dates of injury, eachdate of injury is considered as a separate and distinctclaim, and each date of injury/claim will have a uniqueICMS Board claim number. Unless you are submitting aclaim-initiating document (e.g. a Form WC-14, Notice ofClaim), you must include this claim number, with theassociated date of injury, on the front page of every claimdocument you submit, including briefs and other docu-ments for which a form does not exist. If multiple dates ofinjury are injury are involved, when filing a Form WC-14Request for Hearing, in section B of the form, please listthe other ICMS Board Claim Numbers. However, for eachdate of injury and associated ICMS Board Claim Number,when requesting a hearing, file a Form WC-14 for eachone.

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If you have a claim file that was created prior to Oct. 1,2005, your claim is living most likely in two worlds (paperand electronic). The Board continues to process files thatare primarily paper. Over time, we are scanning the “old”paper files into ICMS. The data for claims created prior toOct. 1, 2005 was migrated from the Georgia Online (GO)mainframe system to ICMS. However, that data was mini-mal and does not include all the information ICMS willhave. If you are a party to a claim created prior to Oct. 1,2005, you may not receive e-mail notifications when docu-ments are filed in these claims because the parties or attor-neys or record have not been added to the claim in ICMS.

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The Board is building a database for storing attorneyinformation. This database includes contact information aswell as each attorney’s Georgia Bar number. It is impera-tive that each attorney who practices Workers’Compensation law in Georgia forwards the followinginformation to ICMSprep@SBWC.ga.gov. The Georgia BarNumber is critical.

Attorney mailing addressPrimary e-mail addressAlternate e-mail addressPhone number & Fax numberGeorgia Bar number

Attorney information is for each individual attorney, nota law firm or multiple attorneys. If an attorney wantsclaim-related information to go to a central law firm emailaddress, the attorney must designate the firm emailaddress as his/her primary email address. Due to the largenumber of e-mails generated from the Board, attorneysmay want to provide a general firm email address or an e-

ICMS Update — Phase IIBy Judge Carolyn C. Hall, chairmanJudge David K. Imahara, director of ADR

Winter 2007 5

mail address separate from a personale-mail address. However, for PhaseIII, where attorneys are recognized asattorneys of record, in order for attor-neys to have access to the Board’sICMS electronic files, all registeredattorneys must provide an emailaddress for web access and theirGeorgia Bar number.

Many people have responded to theBoard’s request for primary and sec-ondary e-mail addresses. At this time,only the primary address is beingused. Secondary addresses will not beactivated until Phase III. If you needto make a change to your address, e-mail, etc., please do so only on a WC-Change of Address Form. File onlyone copy with the Board, and yourupdate will be captured everywherein ICMS. In Phase III, you will be ableto update your information online.

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Board forms have been revisedspecifically to work with the new sys-tem. Every single form was reviewedand revised substantially on July 1,2005 and again on July 1, 2006. Thecurrent version is on the Board’s web-site at www.sbwc.georgia.gov. DONOT ALTER THE BOARD FORMS INANY WAY. See Board Rule 61(b)(64);Board Rule 102(A)(3). Do not changethe fields to reflect something differ-ent than what is on the form.

If you are not sure which form touse, refer to the forms and BoardRules, and in particular Board Rule61(b), on the SBWC website:www.sbwc.georgia.gov. You must usethe proper form to report the informa-tion. If sufficient space does not existon a form, do not alter the form, butyou may attach a supporting docu-ment adding information. For exam-ple, if more parties exist than is possi-ble to list on a Form WC-14, attach apiece of paper showing all the correctparties to a claim.

If the information is not completedsufficiently for processing on a form,it will be returned. The WC-1 is themost critical. The form must identifythe employer, the insurance carrier orself-insured entity, as well as theclaims office handling the claim.Please always complete the section forSBWC ID # which identifies the carri-

er or self-insured entity. See BoardRule 61(b)(1). This number can belocated in an alphabetical listing onthe SBWC website (www.sbwc.geor-gia.gov). Please note that the Board isrejecting Form WC-1s if sections B, C,or D are not filled out.

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When filing anything with theBoard, place the Board claim numberon each page of your document. Thisis especially important where noBoard form exists. If filing correspon-dence with the Board, please place theBoard claim number in the top leftcorner of each page (you can justwrite the Board claim number in oneach page).

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Generally, the manner and methodin which the Board processes any fil-ing is still the same. However, with acomputer based paperless system,PRECISION with filings is required inorder to be processed correctly andefficiently.

Several things can cause a delay inthe processing of forms. Inaccurate orincomplete forms go to research andare not processed into workflow. Forexample, employee name, date ofinjury, and SS# must be correct or elsethe ICMS system will not be able torecognize the filing and associate itwith the correct file. This causes suchfiling to go to “research” for a Boardemployee to determine which file thefiling is to be associated with. Thisone issue causes thousands of docu-ments to be taken out of workflow(essentially suspended) until a properdetermination can be made.

It is also important to know that thetype of document or form that is filedtriggers the processing of all docu-ments and forms. It is imperative thatthe mail reception staff be able toidentify the type of document so thatthe automated system will send it tothe correct process.

Use of outdated forms. All formswere changed effective July 1, 2005and again on July 1, 2006, and areavailable on the Board website

(sbwc.georgia.gov), and the currentversion is required.

If a form is available for the docu-ment you are filing, always use theform, even when you are includingattachments. Never alter a Board formto change the data or informationfields.

If a form is not available for thedocument you are filing, clearly iden-tify and name the document on thefirst page. E.g. Claimant’s Brief,Employer/Insurer Brief for Trial andADR Divisions, Appellant’s Brief,Appellee’s Brief, for Appeals, etc.Additionally, make sure the first pageincludes the New Board ClaimNumber and other claim-identifyinginformation and your Bar Number.

Except for Stipulated Settlements,Board Rules require that only onecopy of a document be filed. If ajudge or other Board personnelrequest an additional copy of a docu-ment be sure to clearly mark the doc-ument as a COPY so that duplicatesare not scanned into the electronicclaim file.

Omitting critical information that ismandatory for processing. Be sure tocomplete all of the information on theform. WC-14 – Please ensure the fol-lowing:

Make sure you correctly identifythe Insurer or Self-insurer and theclaims office (TPA). Please notethat coverage information forinsurers and self-insurers is nowavailable for online look-up atwww.sbwc.georgia.gov

Also critical are the County ofInjury, accurate first and last nameof the claimant, social securitynumber, and date of injury.

If the WC-14 is not the claim-ini-tiating document you should usethe ICMS Board Claim Number,which eliminates many errors andcreation of incorrect duplicate files.

A separate WC-14 is needed foreach date of injury to create aclaim file. Each claim file will havea unique Board Claim Number.

Identify the parties completelyand fully. Most importantly, identi-

See ICMS page 8

Dallas v. Flying J, Inc., 279 Ga.App. 786, 632 S.E.2d389 (2006). Decided May 12, 2006.

At the employer’s request, the ALJ ordered theclaimant to return to the authorized treating physi-cian for evaluation. In that order, the ALJ specifical-

ly directed the claimant to call the clinic, make an appoint-ment, and attend the appointment. The claimant called theclinic and was advised that it did not make appointments,but that he could be seen as a walk-in patient. Theclaimant did not go to the clinic. The ALJ ordered suspen-sion of benefits, and the claimant requested a hearing.After hearing, the ALJ determined that the claimant hadobeyed the letter, if not the spirit, of his order, andreversed himself, ordering reinstatement of benefits. TheAppellate Division disagreed and reversed. Finding thatthe claimant was well aware that the clinic saw patients ona walk-in, first come first served basis, it ruled that theclaimant’s refusal to do so constituted a failure to cooper-ate with medical treatment and ordered a suspension ofbenefits. In so doing, it rejected the claimant’s further argu-ment that requiring him to sit in a waiting room with “20or more sick patients” while waiting his turn to be seenjustified his refusal to cooperate. The Court of Appealsupheld the Appellate Division’s suspension of benefits, asthere was sufficient (any) evidence to support the findingthat the claimant refused to cooperate with medical treat-ment. O.C.G.A. § 34-9-200(c)

Caswell, Inc., v. Spencer, 280 Ga.App. 141, 633 S.E.2d449 (2006). Decided June, 23 2006.

The claimant, 62, had compensable back injuries andapplied for catastrophic designation. The Board’s RehabDivision found the injuries catastrophic. Part of that deci-sion was that his age prevented him from being able toadapt to light duty work. The employer requested a hear-ing, presenting expert testimony that, while age is animportant factor in vocational considerations, a 62 year oldis not unable to learn new skills simply because of his age.The ALJ ruled that the injuries were not catastrophic, andthe Appellate Division affirmed. The superior court foundthat age was not properly considered and remanded thecase back to the State Board. The Court of Appeals dis-agreed; age was, indeed, considered. The case wasremanded back to the superior court for a final decisionwith a reminder that the Board’s award must be upheldwhere there is any evidence to support it.

Gill v. Prehistoric Ponds, Inc., Case No. A06A0461, 634S.E.2d 769 (Ga. Ct. of App. 2006). Decided June 8,2006.

The claimant was injured cleaning out pens at an alliga-tor farm, which bred, fed, grew and slaughtered alligatorsfor their meat, hides and heads. The Administrative Law

Judge ruled that the employer operated a farm and thatthe claimant was a farm laborer so that neither party wassubject to the Act. The Appellate Division reversed hold-ing that an alligator farm did not constitute a farm withinthe meaning of O.C.G.A. 34-9-2 (a); the Superior Courtreversed the Appellate Division and the Court of Appealsreversed the Superior Court. Stating that the issue was oneof first impression, the Court of Appeals agreed with theState Board that alligators are not livestock but game ani-mals and as such are regulated not by the Department ofAgriculture but, instead, by the Department of NaturalResources. Moreover, the Court of Appeals recognized thatalligator farms are excluded from the definition of “farm”in the Employment Security Law.

Rite-Aid Corp. v. Davis, 80 Ga.App. 522, 634 S.E.2d480 (2006). Decided July, 13 2006.

Based on vocational expert evidence, the AdministrativeLaw Judge (ALJ) found that the claimant was unable toperform her prior work due to her 1996 injury but able todo other jobs available in substantial numbers in thenational economy for which she was otherwise qualifiedand granted catastrophic designation. As it existed in 1996,O.C.G.A. § 34-9-200.1(g)(6) provided that an injury is cata-strophic if it is “of a nature and severity that prevents the

6 Workers’ Compensation Law Section

Recent Appellate DecisionsBy Neil C. ThomA. B. Bishop & Associates LLC

employee from being able to performhis or her prior work or any workavailable in substantial numbers inthe national economy.” (Emphasissupplied.) The Appellate Divisionadopted the ALJ’s findings of fact asits own, but reversed, holding that thelegislature actually intended torequire a claimant to establish boththat she could not do her prior workand that she couldn’t perform otherjobs available in substantial numbersin the national economy. (The statutewas changed in 1997 to reflect such arequirement, with the “or” changedto “and”.) The Superior Courtreversed, reinstating catastrophic des-ignation, finding that the statute wasnot ambiguous, absurd, or impracti-cal. The Employer/Insurer appealed.Relying on the plain language of theword “or”, the Court of Appealsaffirmed. Three justices concurred inthe opinion; one in the judgment only;and three justices dissented, assertingthat the majority’s decision wouldmake the definition of a catastrophicinjury less strict than that of tempo-rary total disability in O.C.G.A. § 34-9-261. The statutory constructionbehind the ALJ’s, Superior Court’s,and majority’s decisions was, there-fore, absurd

Vought Aircraft Industries, Inc. v.Faulds, Case No. A06A1197 (Ga.Ct. of App. 2006). Decided Aug. 29,2006.

A hearing in April 2002 found thecase compensable. At that hearingthe Administrative Law Judgerefused to hear the Employer’sclaim for credit for salary paid dur-ing disability based on theEmployer’s failure to file a WC243at least 10 days prior to the hearing.More than two years later theemployer requested a hearingwhich, among other things, soughtcredit for the 20 weeks of salarypaid. The ALJ ruled that res judicatabarred the claim for credit. TheAppellate Division reversed andheld res judicata did not apply tobar the claim for credit. TheSuperior Court reversed theAppellate Division on this issue.The Court of Appeals affirmed theruling of the Superior Court holdingthat, as a matter of law, the doctrine

of res judicata bars future claims forall things which were or whichcould have been raised at a previ-ous hearing.

Korner v. Education ManagementCorporation, Case No. A06A0862(Ga. Ct. of App.). Decided Aug. 29,2006.

The claimant who had bachelor’sand master’s degrees was injuredwhen a student she was counselingattacked her on Feb. 21, 2001. Theclaimant’s physical injuries healedquickly but she continued disabled asa result of psychological/psychiatricconditions. The claimant enrolled inschool to establish a new career butdid not return to work after theattack. The employer requested ahearing seeking to suspend benefitsbased on a change in condition for thebetter. The ALJ found the employerhad carried its burden of proving achange in condition for the better thatthe claimant was able to work andthat suitable work was available. TheAppellate Division reversed as to thefinding of proving the availability ofsuitable work and ordered benefits tocontinue. The Appellate Division alsorefused to allow the employer to con-vert from TTD to TPD on a statutorychange in condition pursuant to 34-9-104 since the employer had not com-plied with the notice provisions of 34-9-104 (a) (2). The Superior Courtreversed the Appellate Division andreinstated the ALJ award as to theavailability of suitable employment.The Court of Appeals reversed theSuperior Court finding that there wassome evidence to support theAppellate Division award and there-fore the Superior Court’s reversal wasimproper.

Cypress Insurance Company v.Duncan, Case No. A06A1468 (Ga.Ct. of App. 2006). Decided Sept. 6,2006.

The employer/insurer appealed theSuperior Court order affirming thedecision of the Appellate Divisionwhich had adopted the award of theAdministrative Law Judge (ALJ)granting the claimant PPD benefitsbut allowing the employer/insurer tooffset temporary total disability (TTD)benefits found to have been overpaid

following what was found to be areturn to work. The Court of Appealsaffirmed the finding that the claimantwas an employee, not an owner,based on the any evidence rule. TheCourt of Appeals found moot theBoard’s ruling that certain documen-tary evidence did not constitute“newly discovered evidence” since itcould have been discovered with theexercise of reasonable diligence. TheCourt of Appeals reversed theAppellate Division’s award of PPDsince the ALJ awarded those benefitssua sponte, without the opportunityto be heard or present evidence.

Goswick v. Murray County Board ofEducation, Case No. A06A1835(Ga. Ct. of App. 2006). DecidedSept. 1, 2006.

The claimant appealed the decisionof the Administrative Law Judge(ALJ) to suspend his weekly benefitsfor refusal to undergo an examinationby the authorized treating physician.The decision was affirmed by theAppellate Division, affirmed by oper-ation of law in the Superior Court,and affirmed by the Court of Appeals.The code section in question providesthat an employee claiming compensa-tion shall submit to examination by aduly qualified physician designatedand paid by the employer or theboard and authorizes the suspensionof benefits for refusal to so submit.The Court of Appeals rejected theclaimant’s argument that § 34-9-202contemplated “independent” medicalexaminations and excluded the treat-ing physician. That a provision hassince been added to the Workers’Compensation Act (O.C.G.A. § 34-9-200(c) in 2003) expressly providing forsuspension of benefits for failure tosubmit to an examination by, specifi-cally, the authorized treating physi-cian, did not retroactively limit theplain meaning of “duly qualifiedphysician” in O.C.G.A. § 34-9-202 toexclude the treating physician.

Metropolitan Atlanta Rapid TransitAuthority v. Reid, Case No.A06A0996 (Ga. Ct. of App. 2006).Decided 10 October 2006.

Five years following his 1999 com-pensable accident, the claimantrequested a change of authorized

Winter 2007 7

treating physician. The request filedwith the State Board consisted of theForm WC-102(b), two pages of argu-ment, and 267 pages of medicalrecords. The request served on theemployer (MARTA) consisted only ofthe Board Form and thetwo-page argument.MARTA filed an objec-tion, including a copy ofthe Internal DisputeResolution (IDR) proce-dures for changing treat-ing physicians within itsWorkers’ CompensationManaged CareOrganization (WCMCO)policies. The ALJ foundthe IDR procedures irrel-evant and granted theclaimant’s request, citingmedical records datingback to 1995. MARTAfiled a motion for recon-sideration and an appeal with theAppellate Division, citing lack of dueprocess and misleading service for theclaimant’s failure to serve the exhibitsand the ALJ’s alleged misinterpreta-tion of the IDR. The AppellateDivision affirmed the ALJ, striking the1995 injury evidence, but not rulingon MARTA’s due process and mis-leading service claims. It found that aclaimant was free to avail itself of thechange of physician procedures in

O.C.G.A. § 34-9-200(b), even wherethere was a WCMCO in place.

MARTA appealed to the superiorcourt, but when the Board transmittedthe record, it discovered thatMARTA’s motion for reconsiderationand supporting documents had beenlost or discarded. MARTA faxed a

copy to the Board, which sent a recon-structed record to the superior court.The Board reported that under itsunpublished appellate procedure, therequest for reconsideration was notrelevant to the proceedings, since theappeal to the Appellate Division ter-minated the ALJ’s jurisdiction over theissues. MARTA added to its appeal aclaim of constructive fraud as a resultof the Board having lost pleadings

and evidence.

The superior court affirmed thechange of physicians, finding thatMARTA had not been deprived ofdue process as a result of the lostpleadings, since it could have raisedthe issue of misleading service beforethe Appellate Division. It further

found that “any evi-dence” supported theBoard’s construction ofthe IDR procedure.

On MARTA’s appealto the Court of Appeals,the Court affirmed therulings below. It heldthat MARTA failed toshow any harm as aresult of the incompleteservice or the loss of itspleadings. As for theIDR issue, MARTAargued that, since BoardRule 208(f) provides that“[d]isputes which ariseon an issue related to

managed care shall first be processedwithout charge through the disputeresolution process of the WC/MCO”and since the claimant had failed toavail himself of that process, thechange of physicians procedure inO.C.G.A. § 34-9-200(b) could notapply. The Court of Appeals rejectedthat argument, holding that the exis-tence of a WCMCO did not negate theapplicability of a change of physiciansby § 200(b). WC

fy the employer as insured or self-insurer. For coverageverification and SBWC ID numbers, see our webpage atsbwc.georgia.gov. If the employer is insured, pleaseidentify the insurer and the claims office.

Use the correct form for the action you are requesting.See the SBWC website: sbwc.georgia.gov for forms andBoard Rules, in particular Board Rule 61(b), e.g. If you arefiling an objection to a motion filed by WC-102d, use theWC-102d. If you are filing an objection to a WC-200b ontreating physician or medical treatment, use the WC-200b.

IInncclluuddee tthhee BBooaarrdd CCllaaiimm NNuummbbeerr!!

In our current system the Board does not need writtenconfirmation from the attorneys on resets, unless specifi-cally instructed by the judge’s office. For attorneys, aclaimant’s attorney should file an attorney fee contract,and for defense attorneys a notice of representation (Form

WC-102b), for every claim.

AA llooookk ttoo tthhee ffuuttuurree wwiitthh PPhhaassee IIIIII

Coming soon, the Board will implement Phase III where-in ICMS will permit Web-based submission of forms aswell as file review over the Internet. Documents that sup-plement claim forms can be submitted as attachments overthe Internet. Once registered, you will be able to submitforms and to view electronic claim files to which you are aparty or attorney of record. Remember that many activeclaim documents filed prior to Oct. 1, 2005 will still be inpaper format and thus, not viewable over the Internet.

The Board will offer training on the new Internet-basedcapabilities later this year. Details on this training will bereleased in the coming months. WC

8 Workers’ Compensation Law Section

ICMSContinued from page 5

Case LawContinued from page 7

Winter 2007 9

From Beltran to Martines: llegal Immigrants and Workers’ Compensationfrom the Claimant’s Perspective

As everyone is probably aware, Martines v . Worley &Sons Construction, 278 Ga. App. 26 (2006) was thelatest case decided by the Georgia courts regarding

illegal immigrants and workers’ compensation. However,many attorneys are unaware of the case law that led to thisdecision. Prior to Hoffman Plastics, Inc. V. National LaborRelations Board, 535 U.S. 137 (2002), only one case had beendecided by the Court of Appeals regarding illegal immi-grants and payment of income benefits. This case wasDynasty Sample Corporation v. Beltran, 224 Ga. App. 90(1996). This article will summarize andbriefly analyze the decisions issued bythe Georgia Court of Appeals in work-ers’ compensation cases regarding ille-gal immigrants.

Dynasty Sample Corporation v. Beltran,224 Ga. App. 90 (1996) involved anillegal immigrant who was workingwith false documents at the time hewas injured. The employer/insureradmitted that they could not deny theclaimant weekly indemnity benefitssimply because he was an illegal immigrant, but theemployer/insurer instead argued that they could denybenefits because of the claimant’s misrepresentations to theemployer. The employer/insurer attempted to argue thatunder Georgia Elec. Co. v. Rycroft, 259 Ga. 155 (1989), theclaimant’s income benefits should be suspended becausehe fraudulently misrepresented his legal status. DynastySample Corporation v. Beltran, 224 Ga. App. 90, 91 (1996).

The Supreme Court of Georgia held in Georgia Elec. Co. v.Rycroft, 259 Ga. 155 (1989) that when an employee fraudu-lently misrepresents his pre-employment physical condi-tion during hiring, this may void the contractual employ-ment relationship and prevent the employee from obtain-ing workers’ compensation benefits. The Court laid out athree-prong test: (1) the employee knowingly and willfullymade a false representation when he applied for work; (2)the employer relied on the false misrepresentation, whichwas a substantial factor in the decision to hire the employ-ee; and (3) there is a causal connection between the falsemisrepresentation and the on-the-job injury. Id. at 158, 160.The Court of Appeals held in Beltran that theemployer/insurer failed to meet the third prong of theRycroft defense, and awarded income benefits to theclaimant. 224 Ga. App. 90, 92 (1996).

It was not until 2002, when Hoffman Plastics, Inc. v.National Labor Relations Board, 535 U.S. 137 (2002) wasdecided, that much of Georgia’s case law regarding illegalaliens and workers’ compensation began to be litigated.The Supreme Court held in Hoffman that the NationalLabor Relations Board could not award back pay to an ille-gal alien from an employer that was prohibited from hir-ing illegal aliens. According to Hoffman, awarding backpay to illegal aliens runs counter to the policies underlyingIRCA (Immigration Reform and Control Act of 1986),which prohibits employment of illegal aliens in the United

States. Id. at 149. As a result, manyemployer/insurers have begun toargue that if an illegal immigrant isunable to receive back pay under fed-eral labor laws, then the illegal immi-grant should not be entitled to incomebenefits under Georgia’s Workers’Compensation Act.

Wet Walls, Inc. v. Ledezma, 266 Ga.App 685 (2004) involved an illegalimmigrant that was injured, incarcer-ated, and then deported back to hisnative land. Prior to being incarcerat-

ed, the claimant received TTD, but once he was incarcerat-ed, the claimant’s TTD was suspended. Id. After theclaimant was deported, he requested recommencement ofhis TTD and PPD. Id. at 686. However, the employer/insur-er argued that the rationale of Hoffman should apply, andas such, IRCA was in conflict with the Workers’Compensation Act. Id. The Court of Appeals disputed this,and held that the employer/insurer’s argument that federallaw would preempt Georgia law regarding whether anillegal immigrant should receive income benefits wasunclear. Id. at 687. The court then concluded that althoughthis was an issue of first impression in Georgia, otherstates that have addressed this issue have concluded thatthere is no conflict between IRCA and a state’s workers’compensation statutes that prohibits an illegal alien fromreceiving benefits. Id. The Court of Appeals then statedthat since the claimant was totally disabled, that TTD ben-efits should be reinstated, and that the request for PPDwas not ripe, as the claimant was not eligible for PPD ben-efits until his TTD benefits had run out. Id. at 687-690.

In Continental Pet Technologies, Inc. v. Palacias, 269 Ga.App. 561 (2004), the employer/insurer denied a claim froman illegal immigrant solely because she was an illegal

By Jackie Piland and Kellie B. Henson Law Offices of Gary Martin Hays & Associates

See Claimant’s Perspective page 10

Prior to Hoffman Plastics,Inc. V. National Labor

Relations Board, 535 U.S.137 (2002), only one casehad been decided by the

Court of Appeals regardingillegal immigrants and pay-ment of income benefits.

10 Workers’ Compensation Law Section

immigrant. Palacias involved a case inwhich the main question before thecourt was whether the ImmigrationReform and Control Act of 1986(IRCA), which prohibits the knowinghiring of illegal aliens and the use offraudulent documents to obtainemployment, and the correspondingfederal regulations, preempt state lawfor employment purposes relating toworkers’ compensation. The Court ofAppeals held that it did not. Id. at 562.Further, the Court of Appeals heldthat “In as much as the goal of theIRCA is to reduce the incentives foremployers to hire illegal aliens, thatgoal would be subverted by allowingemployers to avoid workers’ compen-sation liability for work-relatedinjuries to those employees since suchwould provide employers with afinancial incentive to hire illegalaliens. Id. at 564. As such, the Court ofAppeals awarded benefits to theclaimant. Id. at 565.

In Earth First Grading v. Gutierrez,270 Ga. App. 561 (2004), the employ-er/insurer had originally accepted andpaid TTD benefits to Gutierrez, anillegal immigrant. Once the claimantwas provided with a regular dutywork release, the claimant’s TTD ben-efits were suspended. However, theclaimant never returned to work withthe employer, and instead returned towork several months later with anoth-er employer. During the time betweenthe regular duty work release and theclaimant’s subsequent employment,he had an independent medical exam-ination, which provided the claimantwith light duty restrictions. Id. at 328.The ALJ ruled that after the claimantreturned to work with anotheremployer, he was no longer entitled toTTD benefits. Id. at 329. However, theALJ then ordered that the claimantwas not entitled to any TTD benefitsbetween the time of his regular dutywork release and his return to work,because he was an illegal immigrant.Id. The ALJ reasoned that Gutierrez’ssituation was similar to that of a con-victed, incarcerated person, in thatsomething other than the work-relat-ed injury precluded both from work-ing. Id.

The Court of Appeals held that thiswas not similar to a convicted, incar-cerated person, in that the claimantwas under work restrictions, and thathe was able to work. Id. at 332. Assuch, the claimant was entitled to ben-efits between the time of his regularduty work release and his return towork with another employer, as theCourt of Appeals found that theclaimant was disabled during thistime. Id. Just because the claimant wasan illegal immigrant, it did not meanthat the claimant was unable to work.

The granddaddy of these cases isMartines v. Worley & Sons Construction,278 Ga. App. 26 (2006). Many of ourCLEs over the past year have hadsome type of session regarding thiscase. As such, we will not go overevery aspect of this case. However, wewill review the highlights.

In Martines, the claimant wasinjured while employed by theemployer, and he was eventuallyreleased to return to work withrestrictions. Id. The claimant’s newlight duty job involved driving adelivery truck, and a condition of hisreturn to work was to produce his dri-ver’s license. Id. The claimant did nothave a driver’s license, as he was anillegal immigrant. However, theclaimant did know how to drive. As aresult, the claimant was unable toreturn to his employer. The claimantwas evaluated by his authorized treat-ing physician two days later, and wasplaced on no work restrictions. Id. at27. However, the employer/insurerrefused to reinstate the claimant’sTTD benefits. The Court of Appealsheld that the claimant’s inability toperform his job was not related to hisphysical capacity or ability to performhis job. Id. at 31. Rather, it was theclaimant’s legal inability to acquire adriver’s license that resulted in hisinability to return to work for theEmployer. Id. at 32.

As can be seen by the cases, therehas been quite a shift in reasoningregarding the illegal immigrants andworkers’ compensation. Further, therewill be more litigation involving theGeorgia Security and ImmigrationCompliance Act (SICA), which wassigned into law on April 17, 2006.Effective Jan. 1, 2008, employers will

be prohibited from deducting as abusiness expense $600 or more inwages paid to any individual that isnot authorized to work. If an employ-er learns that the worker is actuallyunauthorized to work in Georgia,then the employer will lose this taxdeduction. We suspect that there willbe more case law in the future regard-ing an employee’s ability to work andhis legal ability to work once SICAgoes into effect.

In summary, the holding in Martineshas not changed the status of the cur-rent case law in Georgia with respectto illegal immigrants, but provides anadditional method foremployers/insurers to deny benefits:for failure to obtain the proper license,due to a legal inability based on vol-untary conduct, if such license isrequired for the proffered light dutyjob. All other things being equal, ille-gal immigrants are entitled to work-ers’ compensation benefits in Georgia,but are subject to the same rules andlaws as workers with proper docu-mentation and natural-born U.S. citi-zens residing in Georgia. WC

Claimant’s PerspectiveContinued from page 9

Winter 2007 11

Whenever I receive an award in the mail, I imme-diately turn to the last page to find those words“altered or terminated by law.” Those words are

a quick indication of whether or not I have prevailed. It isonly after I have satiated that initial curiosity that I beginreading, in earnest, why those words do or do not appear.When I look for those words, I often take them for grant-ed, as though they were “boiler plate” verbiage throwninto awards to make the award sound better. To the con-trary, those words are not placed in awards for the pur-pose of signaling winning or losing or to make the awardsound official; but rather, “altered or terminated by law”has an historic and significant legal meaning.

Prior to 1978, the workers’ compensation system inGeorgia required that benefits be paid by “award or agree-ment” and that changes in condition likewise be by“award or agreement” (Code 1933 § 114 - 709). Some of usremember the old agreement system (16s) as well as cover-age cards and stipulations without “Hartman language.” Itwas in 1978 that the legislature revamped our law to pro-vide for a direct pay system and the language then codi-fied changed the “agreement” language to “or otherwise”which is what the language is today in O.C.G.A. § 34-9-104(a)(1). Benefits under the old law could not be termi-nated unilaterally without a new agreement or award,even if the claimant actually returned to work.

In Awbrey v. Davis, 219 Ga. 598 (1964), the GeorgiaSupreme Court found that:

“where an employee is injured and an agreement topay total disability compensation benefits is enteredinto between the employer and employee andapproved by the compensation board and such agree-ment has not been changed or modified by expressagreement of the parties or by the judgment of thecompensation board or otherwise, the employee is enti-tled to continue to receive payment for total disabilityunder the agreement after he accepts employment froma different employer and earns as much as or morethan he was earning at the time of his injury.” Id at 598.

This meant that benefits must “legally” continue eventhough “factually” the claimant had returned to work.This is a perfect historic example of benefits terminatingonly by way of a legally recognizable method. An employ-er/insurer could not unilaterally suspend benefits unlessthe law allowed such suspension, hence the phrase“altered or terminated by law.” This principle was suc-cinctly stated in Employers Mutual Liability Insurance Co. V.Derwael, 105 Ga. App. 54 (1961) which defined what ismeant by “terminated by law”:

“...this means that no employer, and no insurance com-pany, can voluntarily and exparte decide to cease pay-ing the employee, regardless of how well founded itsclaim may be as a matter of fact ...” Id at 56.

At the time, in 1961, there were only three ways to ter-minate benefits: 1) settlement approved by the Board, 2)payout of the statutory maximum or 3) an order or awardfrom the Board allowing termination.

This is the law, as it exists today except for one variation.In 1978, Code Ann. 114 - 709 was amended to include thephrase “or otherwise” (see O.C.G.A. § 34-9-104(a)). Prior to1978, benefits were commenced by awards and agree-ments and suspended likewise. The 1978 amendment pro-vided for a direct pay system with what we now know asWC-2’s for the commencement and cessation of benefits.Direct pay by way of a WC-2 or WC-1 Part B provides the“otherwise” in addition to awards for the commencementof benefits. So, in order to terminate benefits unilaterallyunder the phrase “otherwise,” it must be through amethod recognized “by law.” For instance, reducing bene-fits from temporary total to temporary partial underO.C.G.A. § 34-9-104(a)(2); failure to return to suitableemployment under O.C.G.A. § 34-9-240(b)(2); return towork on light duty and without restriction in accord withRules 221(i)(1) and 221(i)(4); are all legally permissiblevenues for unilaterally terminating or modifying benefits“by law.”

If the law does not recognize a unilateral termination ofbenefits (see also O.C.G.A. § 34-9-221(h)) it is necessary fora party to avail itself of O.C.G.A. § 34-9-104(b) which states“any party may apply for another decision because of achange in condition.” Thus, the phrase “altered or termi-nated by law” carries special meaning by legally protect-ing the claimant’s benefits except for a handful of legallyrecognizable methods of terminating benefits. WC

Altered or Terminated by LawBy Joseph T. Leman706-226-0040

12 Workers’ Compensation Law Section

The 2006 Session of the General Assembly of Georgiadid not enact many changes in the workers compen-sation statutes. However, the brevity of changes does

not negate their potential to impact claim values sincesome of the matters which were addressed include anincrease in death benefits, Subsequent Injury Trust Fund(SITF) reimbursement and mileage reimbursement. Inaddition to the statutory changes, there were also severalchanges to the Board Rules. This article will provide a syn-opsis of the legislative changes to the workers’ compensa-tion statutes along with the changes to the Board Rules.

OO..CC..GG..AA 3344-99-2255

This is a new statute, which removes the workers’ com-pensation exception from the Patient Self-referral Act of1993. The act was designed to guard against health careprofessionals referring patients to other health careproviders and facilities in which the health care profes-sional had an investment interest. Certain exceptionsapply, however, workers’ compensation is no longerexempt.

OO..CC..GG..AA.. 3344-99-110044

The 2006 amendment substitutes language in paragraph(a)(2) regarding notice requirements when the claimanthas been released to return to work with restrictions. Thestatute provides:

(2) . . . . Within 60 days of the employee’s release toreturn to work with restrictions or limitations, theemployee shall receive notice from the employer on aform provided by the board that will inform theemployee that he or she has been released to work withlimitations or restrictions, will include an explanationof the limitations or restrictions, and will inform theemployee of the general terms of this Code section. Inno event shall an employee be eligible for more than 78aggregate weeks of benefits for total disability whilesuch employee is capable of performing work with lim-itations or restrictions . . . .

OO..CC..GG..AA.. §§ 3344-99-220033

The 2006 amendment to paragraph (c)(4) allows theclaimant one year from the date of occurrence to submit amileage reimbursement request. The statute provides:

(4) Notwithstanding any other provision of this subsec-tion, if the employee or the provider of health caregoods or services fails to submit its charges to theemployer or its workers’ compensation insurer within

one year of the date of service or the issuance of suchgoods or services or, in the case of an employee, withinone year of the date of incurring of mileage expenses,then the provider is deemed to have waived its right tocollect such charges from the employer, its workers’compensation insurer, and the employee; and, in regardto mileage expenses, the employee is deemed to havewaived his or her right to collect such charges from theemployer or its workers’ compensation insurer.

OO..CC..GG..AA.. §§ 3344-99-226655

The 2006 amendment increases the maximum death ben-efit for the surviving spouse from $125,000 to $150,000.

OO..CC..GG..AA.. §§ 3344-99-336622

The 2006 amendment requires that a party filing a noticeof claim with SITF on or before July 1, 2006, obtain a reim-bursement agreement from SITF by June 30, 2009. Thosenotices of claim filed after July 1, 2006 must obtain a reim-bursement agreement within three years of filing a noticeof claim with SITF or reimbursement is automaticallydenied. Further, if the compensability of a claim is beingadjudicated, the employer or insurer has three years fromthe date of the final adjudication of compensability toobtain a reimbursement agreement. The statute provides:

(b) In those claims where the employer or insurer iscontemplating filing against the fund, the claim mustbe filed in accordance with the requirements of subsec-tion (a) of this Code section prior to the final settlementof the claim.

(d) For those notices of claim filed with the fund on orbefore July 1, 2006, the employer or insurer shall haveuntil June 30, 2009, to obtain a reimbursement agree-ment issued by the fund or the claim for reimburse-ment shall be deemed automatically denied.

(e) For those notices of claim filed with the fund afterJuly 1, 2006, the employer or insurer shall have threeyears from the date the notice was received by the fundto obtain a reimbursement agreement issued by thefund or the claim for reimbursement shall be deemedautomatically denied.

(f) Notwithstanding subsections (d) and (e) of thisCode section, if compensability of the underlyingworkers’ compensation claim is at issue before the StateBoard of Workers’ Compensation, then the employer orinsurer shall have three years from the date of finaladjudication of compensability by the State Board ofWorkers’ Compensation or any appellate court toobtain a reimbursement agreement issued by the fund

2006 Workers’ CompensationStatutory and Rule ChangesBy Raffaela N. Wilson, Esq.Hollowell, Foster & Gepp, P.C.

Winter 2007 13

or the claim for reimbursementshall be deemed automaticallydenied.

(g) Upon actual or statutory auto-matic denial pursuant to subsec-tion (d), (e), or (f) of this Code sec-tion, the employer or insurer shallhave 20 days from the date ofdenial to request a hearing withthe State Board of Workers’Compensation pursuant to CodeSection 34-9-100; otherwise recov-ery shall be barred.

22000066 RRuullee AAmmeennddmmeennttss

Several changes to the Rules andRegulations of the State Board ofWorkers’ Compensation were enacted.These changes affect how and whenforms are required to be filed, limita-tions on Brief responses as well asnew forms.

RRuullee 1155

Section (e) specifies that the attor-ney’s fee portion of the settlementshall not be taken as a portion or apercentage of medical treatment orexpenses.

Section (f) was amended to providea WC-1 must be included with everyno-liability stipulation for each acci-dent date covered in the stipulation.

RRuullee 6611

Rule 61 includes several amend-ments to the Board forms and filingrequirements. Additionally, newBoard forms have been included.Please review all the forms as changesmay have a direct impact on the nec-essary filings for your clients.

Section (b)(1) was amended torequire insurers and self-insurers toprovide their SBWC ID Number onthe form where indicated. The formmust be completely filled-out toinclude the name and address of theemployee, employer, insurer, self-insurer, or group self-insurer, date ofinjury, the employee’s social securitynumber, the insurer’s, self-insurer’s,or group/self-insurer’s SBWC ID num-ber, or the completion of sections B, C,or D could result in the rejection ofthe filing with the Board.

Section (b)(2) was amended to spec-ify that the filing of a WC-2 is

required, when paying, suspending,or modifying benefits under O.C.G.A.§ 34-9-261, O.C.G.A. § 34-9-262, orO.C.G.A. § 34-9-263.

Section (b)(10) was amended todelete the last sentence which indi-cates the form is not to be used for achange of address

Section (b)(11) was renamed andrewritten to specify that a form WC-14A is to be filed with the Board toadd or amend any informationregarding the parties, new dates ofinjury, hearing issues, mediationissues and part of the body injured.

(b)(11) Form WC-14A. Request toChange Information on a PreviouslyFiled Form WC-14. A party or attor-ney shall file this form with the Boardwhen requesting correction of a mis-take concerning the employee’s name,social security number, date of injury,or county of injury on a previouslyfiled Form WC-14. A Form WC-14Ashall not be used to change anaddress of record, add additional par-ties, or additional dates of injury. Anew Form WC-14 shall be filed withthe Board to add or amend any infor-mation pertaining to the employer,the insurer, the servicing agent or partof body injured, and to add an addi-tional date of injury, hearing issue, ormediation issue.

(b)(25) Form WC-121 Change ofTPA Claims Office/Servicing Agent.An insurer, self-insurer, or self-insur-ance fund shall file this form to give:(1) notice of the employment of aclaims office; (2) change an address ofa claims office; (3) add additionalclaims offices; and (4) notice of thetermination of services of a claimsoffice.

(b)(28) WC-200a Change ofPhysician/Additional Treatment byConsent. . . . . A Form WC-200a shallbe rejected by the Board if a FormWC-1 or WC-14 has not been previ-ously filed by any party or attorneycreating a Board claim.

(b)(36) WC-240 Notice to Employeeof Offer of Suitable Employment. . . .. File this form as an attachment to aForm WC-2 when unilaterally sus-pending income benefits under BoardRule 240(b)(1)-(2).

(b)(37) WC-240A Job Analysis. . . . .Attach this form with a Form WC-240,and file it with the Form WC-240 asan attachment to a Form WC-2 whenunilaterally suspending income bene-fits under Board Rule 240(b)(1)-(2).

The following includes new Rulesand new forms:

(b)(26) Form WC-131. Permit toWrite Insurance. Insurers shall com-plete this form and file it with theBoard to receive a permit to writeworkers’ compensation insurance inthe state of Georgia.

(b)(27) Form WC-131(a). Permit toWrite Insurance Update. Insurersshall complete this form annually andfile it with the Board when updating apermit to write workers’ compensa-tion insurance in the state of Georgia.

(b)(48) Form WC-RehabilitationRegistration Application. Applicationto be a licensed rehabilitation suppli-er. File this form with the Board to bea certified rehabilitation supplier inthe state of Georgia.

(b)(49) Form WC-RehabilitationRegistration Application Renewal.Application to renew certification fora licensed rehabilitation supplier. Filethis form annually with the Board torenew certified rehabilitation supplierstatus in the state of Georgia.

(b)(54) Any party or attorney filinga form with the Board shall use themost current version of the form. Inaddition, no party or attorney shallsubmit any form that has been discon-tinued or altered. A violation of thisrule may result in the rejection of thefiling with the Board, and/or theimposition of a civil penalty underO.C.G.A. § 34-9-18.

(b)(55) When electronically filingany form with the Board, and whenrequired by Statute, Rule, or form toserve a copy on an opposing attorneyor party, a copy of the form or theICMS equivalent of the form filedmay be used for service.

RRuullee 110000

The amendments to Rule 100 affectconfidentiality of mediation notes,postponements, parties in attendance

See Rule Changes page 14

14 Workers’ Compensation Law Section

at a mediation conference and mis-conduct during proceedings.Substantial language has been addedto Board Rule 100.

With regard to confidentiality ofmediation notes, it has been the casethat all communications occurringwithin the context of mediation maynot be disclosed at a subsequent hear-ing, with the exception of names ofphysicians submitted in a change-in–physician dispute. However,under the Rule changes, there aresome additional exceptions to media-tion confidentiality.

(f)(1) . . . . An executed Board medi-ation sheet or written executed agree-ment resulting from a mediation isnot subject to the confidentialitydescribed above.

(f)(2) Neither the mediator nor any3rd party observer present with thepermission of the parties may be sub-poenaed or otherwise required to tes-tify concerning a mediation or settle-ment negotiations in any proceeding.The mediator’s notes shall not beplaced in the Board’s file, are not sub-ject to discovery, and shall not be usedas evidence in any proceeding.

(f)(3) Confidentiality does notextend to:

(A) threats of violence to themediator or others;(B) security personnel or lawenforcement officials;(C) party or attorney misconduct;(D) legal or disciplinary com-plaints brought against a mediatoror attorney arising out of and inthe course of a mediation;(E) appearance;

Another amendment to Board Rule100 specifies those who may attend amediation conference.

(g) Attendance.

(2) Only the parties and attorneysof record may attend a scheduledmediation. Exceptions to attendancemay be granted if agreed or consentedto by the parties and attorneys ofrecord and approved by a mediator oran Administrative Law Judge.

There have also been some amend-ments affecting cancellation, and/orpostponement of mediation confer-ences.

(h) Any party or attorney request-ing cancellation, postponement orrescheduling of a mediation confer-ence shall provide notice to all partiesor their attorneys and shall promptly,but in no event later than 4:30 p.m. onthe business day immediately beforethe scheduled mediation conference,notify the ADR Division of therequest: (1) first, by telephone call,and (2) then, when instructed by theADR Division or when otherwiseappropriate or necessary, by a subse-quent written or electronic confirma-tion.

Misconduct during mediations isexpressly prohibited.

(i) No person, party, or attorneyshall, during the course of any media-tion, engage in any discourteous,unprofessional, or disruptive conduct

RRuullee 110022

Section (A)(2) was added to requirethat all attorneys not licensed to prac-tice in Georgia shall comply withUniform Rule of Superior Court 4.4.

Section (A)(3) requires that attor-neys place their Georgia bar numberson all filings. Additionally, the cur-rent form of all forms must be used. Section (C)(1) adds language regard-ing a second postponement, specify-ing that (just like a first-time post-ponement) it must be made no laterthan 4:30 p.m. on the business dayimmediately before the scheduledhearing and the request must beapproved by the Administrative LawJudge. The same time requirementapplies to a case to be removed fromthe calendar with no reset.

Section (D)(1) has added therequirement that motions and objec-tions are limited to 50 pages whichshall include briefs and exhibits.Exceptions are discretionary for theAdministrative Law Judge.

Section (E)(3)(b) now requires alldepositions be completed prior to thehearing. Additionally, failure toexchange medical evidence, and pre-sumably failure to conduct timely

depositions, could result in penaltiessuch as cost and exclusion of evi-dence.

Section (E)(4) requires Briefs to belimited to 30 pages.

Section (E)(7) was added to allowthe Board to send a notice of hearingby electronic mail but if electronicmail is not available, the Board willsend notice by U.S. Mail.

RRuullee 110088

The Rule specifies certain informa-tion on the attorney fee contract.

(a) . . . . This contract shall includethe following attorney typed informa-tion: (1) name, (2) bar number, (3)firm name, (4) address, (5) phonenumber, (6) fax number, (7) e-mailaddress, and (8) Board claim number.If the Board claim number is notknown, this contract shall include theemployee’s first name, last name,social security number, and date ofinjury. Finally, all contracts shallinclude the employee’s name andaddress.

Additionally, a section has beenadded to clarify that the attorney maynot be paid out of monies for medicaltreatment or expenses.

RRuullee 220000

The Rule now limits a change ofphysician request to 50 pages which isinclusive of exhibits. An exceptionmay be granted by an AdministrativeLaw Judge.

RRuullee 220000..11

Section (e)(2)(iv) has been amendedto increase the time a party has toobject to the designation of a rehabili-tation supplier from 15 days to 20days.

Section (e)(3) limits who may attenda mediation or rehabilitation confer-ence to the parties, attorneys of recordand the rehabilitation supplier. If aparticipant in the mediation or reha-bilitation conference wishes to havesomeone else present, exceptions maybe allowed if agreed to by the partiesand attorneys of record and approvedby a mediator, rehabilitation coordi-nator, or administrative law judge.

Section (f)(2)(i) no longer requires a

Rule ChangesContinued from page 13

Winter 2007 15

rehabilitation supplier to submit aca-demic transcripts or professionallicenses when registering as a rehabil-itation supplier.

Section (f)(2)(iii) requires that anappeal of a denial of a rehabilitationsupplier’s request for an application,renewal or registration be submittedto the Board.

Section (f)(4)(ii) was amended torequire appeals for denials of anapplication for registration as a cata-strophic supplier be submitted to theBoard.

RRuullee 220022

This Rule no longer defines a func-tional capacity evaluation as part of“necessary testing.”

RRuullee 220033

The mileage rate is 40 cents permile.

RRuullee 222211

Section (c) provides a WC-1 or WC-2 must be filed with the Board whencommencing or suspending paymentof benefits even if payment is salaryin lieu of benefits. Further, a WC-2shall be filed with the Board to reportchanges in the weekly benefitamount. WC

There is no question that Reflex Sympathetic Dystrophy (RSD) has becomean increasingly hot topic within the medical/legal field. This is due to anincreasingly large number of patients being diagnosed with this painful

and frequently misunderstood disorder. RSD is a very difficult diagnosis tounderstand and, in some cases, the treatment for this disorder can be ineffec-tive as well as expensive. In general, the difficulties encountered by cliniciansand patients primarily stem from a misdiagnosis of RSD.

RSD has specific diagnostic criterion and treatment algorithms. By definition,it is a type of Chronic Regional Pain Syndrome (CRPS). RSD (or CRPS type I) ischaracterized by pain in a specific extremity. It may or may not be caused byany specific injury or inciting event, but the signs and symptoms characterizethe syndrome. RSD affects the extremities. The affected areas tend to be painfuland swollen, and there are characteristic alterations in skin temperature, colorand texture. Individuals with RSD describe their pain as burning, severe, andsensitive to touch. Moreover, alterations in limb appearance occur with time-skin discoloration occurs, limb contractures develop, and joint movement andrange of motion decrease. In order to avoid these unwanted end-effects of RSD,rapid diagnosis and aggressive treatment are not only necessary but critical.

Correct diagnosis of RSD is made with clinical examination and testing.Noting the presence of specific symptoms is the first step: severe pain, limbdiscoloration, limb temperature changes and swelling. The diagnosis can befurther confirmed with certain types of diagnostic testing: triple phase bonescan, skin temperature readings, and sympathetic blocks. Once the diagnosis isconfirmed, treatment should begin immediately.

Treatment of RSD is most effectively achieved with aggressive physical thera-py and tactile stimulation. Adjunctive therapy with specific interventions andoral medications to decrease pain is also beneficial. In general, the primary goalof RSD treatment is decreased pain and return to baseline function. However,the treatment of RSD typically is not the issue. The issue tends to be misdiag-nosis.

RSD has inappropriately evolved to become a ‘garbage can’ diagnosis. Manyphysicians incorrectly diagnose their patient with RSD when the patient simplycomplains of pain with an unknown origin. This is incorrect. RSD is a clearlydefined diagnosis that can be made with a comprehensive clinical evaluationsupplemented by specific diagnostic tests and procedures. Inappropriate diag-nosis of RSD will typically lead to inappropriate treatment and therapy. This isnot only costly, but ineffective.

Two main points to remember about RSD are: 1) It is imperative that RSD bediagnosed correctly so that appropriate management can be implemented in itsinitial stages and 2) Treatment of RSD must be performed rapidly in order toprevent further disease progression. RSD can be managed. However, it must bediagnosed early and appropriately. When this done, the patient is more likelyto return to his/her prior level of functioning. Moreover, it will prevent futurehealth and pain related problems. WC

RSD: A MisunderstoodDiagnosisBy Keith C. Raziano, M.D.

State Bar of GeorgiaWorkers’ Compensation Law SectionAnn Bishop, Editor104 Marietta Street, NWAtlanta, GA 30303

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