WORKERS’ COMPENSATION FOR THE GENERAL PRACTITIONER · 2018-05-08 · WORKERS’ COMPENSATION FOR THE GENERAL PRACTITIONER 1 of 116 April 26, 2018 ICLE: State Bar Series WORKERS’

WORKERS’ COMPENSATION

FOR THE GENERAL PRACTITIONER

PROGRAM MATERIALSApril 26, 2018

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INSTITUTE OF CONTINUING LEGAL EDUCATION

WORKERS’ COMPENSATION FOR THE GENERAL PRACTITIONER1 of 116

April 26, 2018 ICLE: State Bar Series

WORKERS’ COMPENSATION FORTHE GENERAL PRACTITIONER

6 CLE Hours Including1 Professionalism Hour | 4.5 Trial Practice Hours

Sponsored By: Institute of Continuing Legal Education


Printed By:

Copyright © 2018 by the Institute of Continuing Legal Education of the State Bar of Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE.

The Institute of Continuing Legal Education’s publications are intended to provide current and accurate information on designated subject matter. They are off ered as an aid to practicing attorneys to help them maintain professional competence with the understanding that the publisher is not rendering legal, accounting, or other professional advice. Attorneys should not rely solely on ICLE publications. Attorneys should research original and current sources of authority and take any other measures that are necessary and appropriate to ensure that they are in compliance with the pertinent rules of professional conduct for their jurisdiction.

ICLE gratefully acknowledges the eff orts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily refl ect the opinions of the Institute of Continuing Legal Education, its offi cers, or employees. The faculty is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. This publication was created to serve the continuing legal education needs of practicing attorneys.

ICLE does not encourage non-attorneys to use or purchase this publication in lieu of hiring a competent attorney or other professional. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

Although the publisher and faculty have made every eff ort to ensure that the information in this book was correct at press time, the publisher and faculty do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause.

The Institute of Continuing Legal Education of the State Bar of Georgia is dedicated to promoting a well organized, properly planned, and adequately supported program of continuing legal education by which members of the legal profession are aff orded a means of enhancing their skills and keeping abreast of developments in the law, and engaging in the study and research of the law, so as to fulfi ll their responsibilities to the legal profession, the courts and the public.

Who are we?

SOLACE is a program of the State

Bar of Georgia designed to assist

those in the legal community who

have experienced some significant,

potentially life-changing event in their

lives. SOLACE is voluntary, simple and

straightforward. SOLACE does not

solicit monetary contributions but

accepts assistance or donations in kind.

Contact [email protected] for help.

HOW CAN WE HELP YOU?

How does SOLACE work?

If you or someone in the legal

community is in need of help, simply

email [email protected]. Those emails

are then reviewed by the SOLACE

Committee. If the need fits within the

parameters of the program, an email

with the pertinent information is sent

to members of the State Bar.

What needs are addressed?

Needs addressed by the SOLACE

program can range from unique medical

conditions requiring specialized referrals

to a fire loss requiring help with clothing,

food or housing. Some other examples

of assistance include gift cards, food,

meals, a rare blood type donation,

assistance with transportation in a

medical crisis or building a wheelchair

ramp at a residence.

Printed By:

Copyright © 2018 by the Institute of Continuing Legal Education of the State Bar of Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE.

The Institute of Continuing Legal Education’s publications are intended to provide current and accurate information on designated subject matter. They are off ered as an aid to practicing attorneys to help them maintain professional competence with the understanding that the publisher is not rendering legal, accounting, or other professional advice. Attorneys should not rely solely on ICLE publications. Attorneys should research original and current sources of authority and take any other measures that are necessary and appropriate to ensure that they are in compliance with the pertinent rules of professional conduct for their jurisdiction.

ICLE gratefully acknowledges the eff orts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily refl ect the opinions of the Institute of Continuing Legal Education, its offi cers, or employees. The faculty is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. This publication was created to serve the continuing legal education needs of practicing attorneys.

ICLE does not encourage non-attorneys to use or purchase this publication in lieu of hiring a competent attorney or other professional. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

Although the publisher and faculty have made every eff ort to ensure that the information in this book was correct at press time, the publisher and faculty do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause.

The Institute of Continuing Legal Education of the State Bar of Georgia is dedicated to promoting a well organized, properly planned, and adequately supported program of continuing legal education by which members of the legal profession are aff orded a means of enhancing their skills and keeping abreast of developments in the law, and engaging in the study and research of the law, so as to fulfi ll their responsibilities to the legal profession, the courts and the public.

Who are we?

SOLACE is a program of the State

Bar of Georgia designed to assist

those in the legal community who

have experienced some significant,

potentially life-changing event in their

lives. SOLACE is voluntary, simple and

straightforward. SOLACE does not

solicit monetary contributions but

accepts assistance or donations in kind.


HOW CAN WE HELP YOU?

How does SOLACE work?

If you or someone in the legal

community is in need of help, simply

email [email protected]. Those emails

are then reviewed by the SOLACE

Committee. If the need fits within the

parameters of the program, an email

with the pertinent information is sent

to members of the State Bar.

What needs are addressed?

Needs addressed by the SOLACE

program can range from unique medical

conditions requiring specialized referrals

to a fire loss requiring help with clothing,

food or housing. Some other examples

of assistance include gift cards, food,

meals, a rare blood type donation,

assistance with transportation in a

medical crisis or building a wheelchair

ramp at a residence.

A solo practitioner’s

quadriplegic wife needed

rehabilitation, and members

of the Bar helped navigate

discussions with their

insurance company to obtain

the rehabilitation she required.

A Louisiana lawyer was in need

of a CPAP machine, but didn’t

have insurance or the means

to purchase one. Multiple

members offered to help.

A Bar member was dealing

with a serious illness and in

the midst of brain surgery,

her mortgage company

scheduled a foreclosure on

her home. Several members

of the Bar were able to

negotiate with the mortgage

company and avoided the

pending foreclosure.

Working with the South

Carolina Bar, a former

paralegal’s son was flown

from Cyprus to Atlanta

(and then to South Carolina)

for cancer treatment.

Members of the Georgia and

South Carolina bars worked

together to get Gabriel and

his family home from their

long-term mission work.

TESTIMONIALSIn each of the Georgia SOLACE requests made to date, Bar members have graciously

stepped up and used their resources to help find solutions for those in need.

The purpose of the SOLACE program is to allow the legal community to provide help in meaningful and compassionate ways to judges, lawyers,

court personnel, paralegals, legal secretaries and their families who experience loss of life or other catastrophic illness, sickness or injury.


iiiFOREWORD

Dear ICLE Seminar Attendee,

Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing this program. Also, we would like to thank the volunteer speakers. Without the untiring dedication and eff orts of the Chairperson(s) and speakers, this seminar would not have been possible. Their names are listed on the AGENDA page(s) of this book, and their contributions to the success of this seminar are immeasurable.

We would be remiss if we did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us at ICLE hope your attendance will be benefi cial as well as enjoyable We think that these program materials will provide a great initial resource and reference for you.

If you discover any substantial errors within this volume, please do not hesitate to inform us. Should you have a diff erent legal interpretation/opinion from the speaker’s, the appropriate way to address this is by contacting him/her directly.

Your comments and suggestions are always welcome.

Sincerely, Your ICLE Staff

Jeff rey R. DavisExecutive Director, State Bar of Georgia

Tangela S. KingDirector, ICLE

Rebecca A. HallAssociate Director, ICLE


A solo practitioner’s

quadriplegic wife needed

rehabilitation, and members

of the Bar helped navigate

discussions with their

insurance company to obtain

the rehabilitation she required.

A Louisiana lawyer was in need

of a CPAP machine, but didn’t

have insurance or the means

to purchase one. Multiple

members offered to help.

A Bar member was dealing

with a serious illness and in

the midst of brain surgery,

her mortgage company

scheduled a foreclosure on

her home. Several members

of the Bar were able to

negotiate with the mortgage

company and avoided the

pending foreclosure.

Working with the South

Carolina Bar, a former

paralegal’s son was flown

from Cyprus to Atlanta

(and then to South Carolina)

for cancer treatment.

Members of the Georgia and

South Carolina bars worked

together to get Gabriel and

his family home from their

long-term mission work.

TESTIMONIALSIn each of the Georgia SOLACE requests made to date, Bar members have graciously

stepped up and used their resources to help find solutions for those in need.

The purpose of the SOLACE program is to allow the legal community to provide help in meaningful and compassionate ways to judges, lawyers,

court personnel, paralegals, legal secretaries and their families who experience loss of life or other catastrophic illness, sickness or injury.


iiiFOREWORD

Dear ICLE Seminar Attendee,

Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing this program. Also, we would like to thank the volunteer speakers. Without the untiring dedication and eff orts of the Chairperson(s) and speakers, this seminar would not have been possible. Their names are listed on the AGENDA page(s) of this book, and their contributions to the success of this seminar are immeasurable.

We would be remiss if we did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us at ICLE hope your attendance will be benefi cial as well as enjoyable We think that these program materials will provide a great initial resource and reference for you.

If you discover any substantial errors within this volume, please do not hesitate to inform us. Should you have a diff erent legal interpretation/opinion from the speaker’s, the appropriate way to address this is by contacting him/her directly.

Your comments and suggestions are always welcome.

Sincerely, Your ICLE Staff

Jeff rey R. DavisExecutive Director, State Bar of Georgia

Tangela S. KingDirector, ICLE

Rebecca A. HallAssociate Director, ICLE

V



AGENDA

Presiding:Kevin C. Gaulke, Program Co-Chair, Moore Clarke DuVall & Rodgers PC, AtlantaHon. Nicole D. Tifverman, Program Co-Chair, Administrative Law Judge, State Board of Workers’ Compensation, Savannah

7:30 REGISTRATION AND CONTINENTAL BREAKFAST (All attendees must check in upon arrival. A jacket or sweater is recommended.)

8:10 WELCOME AND PROGRAM OVERVIEW Kevin C. Gaulke

8:15 TRYING A WORKERS’ COMPENSATION CASE BEFORE THE ALJ Hon. Richard H. Sapp, III, Administrative Law Judge, State Board of Workers’ Compensation, Atlanta Tracee R. Benzo, Benzo Law LLC, Atlanta K. Martine Cumbermack, Swift Currie McGhee & Hiers LLP, Atlanta

9:30 STATE OF THE BOARD/ICMS Hon. Viola S. Drew, Administrative Law Judge, State Board of Workers’ Compensation, Atlanta

10:00 BREAK 10:10 APPEALING THE WORKERS’ COMPENSATION AWARD Christopher K. Gifford, Law Offices of Benjamin Y. Gerber LLC, Atlanta Lynn B. Olmert, McAngus Goudelock & Courie, Atlanta

11:00 MEDIATING AND SETTLING A WORKERS’ COMPENSATION CLAIM David M. Kay, Settlement Division Director, State Board of Workers’ Compensation, Atlanta Kyle D. Johnston, Tillman & Associates, Atlanta Kelly R. Speir, Levy Sibley Foreman & Speir LLC, Atlanta

11:45 LUNCH (Included in registration fee.)

12:10 REPRESENTING THE PARTIES TO A CATASTROPHIC CASE Hon. Kimberly S. Boehm, Administrative Law Judge, State Board of Workers’ Compensation, Atlanta Justin K. Lowery, Morgan & Morgan, Atlanta Michael T. Hammond, Moore Clarke DuVall & Rodgers PC, Atlanta

1:10 PROFESSIONALISM IN WORKERS’ COMPENSATION CASES Hon. Sharon H. Reeves, Administrative Law Judge, State Board of Workers’ Compensation, Macon John D. Christy, John D. Christy P.C., Perry Russell C. Wallace, Wallace Law Group, PC, Valdosta

VII


1:50 BREAK

2:00 PETITIONS FOR MEDICAL TREATMENT AND OTHER PRE-TRIAL MOTIONS Hon. David K. Imahara, Administrative Law Judge, State Board of Workers’ Compensation, Atlanta Sarah E. Stottlemyer, Stottlemyer & Associates, LLC, Atlanta Stephen J. Graham, Drew Eckl & Farnham LLP, Atlanta

3:00 ADJOURN


TABLE OF CONTENTSIX

Foreword ................................................................................................................................................... V

Agenda .....................................................................................................................................................VII

Workers’ Compensation for the General Practitioner ....................................................... 9-116

Appendix: ICLE Board ................................................................................................................................................. 1Georgia Mandatory CLE Fact Sheet ................................................................................................ 2

Page



8:15 TRYING A WORKERS’ COMPENSATION CASE BEFORE THE ALJ Hon. Richard H. Sapp, III, Administrative Law Judge, State Board of Workers’ Compensation, Atlanta Tracee R. Benzo, Benzo Law LLC, Atlanta K. Martine Cumbermack, Swift Currie McGhee & Hiers LLP, Atlanta


1

TRYING A CASE BEFORE THE ADMINISTRATIVE LAW JUDGE

Honorable Richard H. Sapp Administrative Law Judge

K. Martine Cumbermack, Esq.

Partner Swift, Currie, McGhee & Hiers, LLP

Tracee R. Benzo, Esq.

Benzo Law , LLC

2

TABLE OF CONTENTS

Contents Trying a Workers’ Compensation Case before the Administrative Law Judg ............................... 3

i. How a WC Case Becomes Litigated ....................................................................................... 4

ii. Discovery ................................................................................................................................ 5

a. Common Discovery Disputes ................................................................................................. 5

1. Sequence of Discovery ....................................................................................................... 6

2. Surveillance......................................................................................................................... 6

3. Adjuster Claim notes.......................................................................................................... 7

b. Limited Pre-Litigation Discovery ........................................................................................... 7

iii. Preparing for Trial: Evidence & Other Tools ...................................................................... 8

a. Surveillance ............................................................................................................................ 8

b. Timelines for Exchange of Evidence ..................................................................................... 9

c. Witness Subpoenas............................................................................................................... 10

d. Hearing Postponements ........................................................................................................ 10

e. Pre-Hearing Exchange of Evidence ..................................................................................... 12

f. Pre-Hearing Conference Calls .............................................................................................. 12

iv. Conduct of Hearings ............................................................................................................. 13

a. Stipulations ............................................................................................................................ 13

b. Exhibits ................................................................................................................................. 14

c. Burdens of Proof ................................................................................................................... 15

d. Witnesses & Documentary Evidence.................................................................................... 15

e. Attorneys’ fees ...................................................................................................................... 16

v. Post –Hearing Briefs ............................................................................................................. 17

a. Closing Arguments................................................................................................................ 17

b. Timelines for Briefs .............................................................................................................. 17

c. Timeline for Ruling/Award ................................................................................................... 18

d. Timeline for Appeal .............................................................................................................. 18


1

TRYING A CASE BEFORE THE ADMINISTRATIVE LAW JUDGE

Honorable Richard H. Sapp Administrative Law Judge

K. Martine Cumbermack, Esq.

Partner Swift, Currie, McGhee & Hiers, LLP

Tracee R. Benzo, Esq.

Benzo Law , LLC

2

TABLE OF CONTENTS

Contents Trying a Workers’ Compensation Case before the Administrative Law Judg ............................... 3

i. How a WC Case Becomes Litigated ....................................................................................... 4

ii. Discovery ................................................................................................................................ 5

a. Common Discovery Disputes ................................................................................................. 5

1. Sequence of Discovery ....................................................................................................... 6

2. Surveillance......................................................................................................................... 6

3. Adjuster Claim notes.......................................................................................................... 7

b. Limited Pre-Litigation Discovery ........................................................................................... 7

iii. Preparing for Trial: Evidence & Other Tools ...................................................................... 8

a. Surveillance ............................................................................................................................ 8

b. Timelines for Exchange of Evidence ..................................................................................... 9

c. Witness Subpoenas............................................................................................................... 10

d. Hearing Postponements ........................................................................................................ 10

e. Pre-Hearing Exchange of Evidence ..................................................................................... 12

f. Pre-Hearing Conference Calls .............................................................................................. 12

iv. Conduct of Hearings ............................................................................................................. 13

a. Stipulations ............................................................................................................................ 13

b. Exhibits ................................................................................................................................. 14

c. Burdens of Proof ................................................................................................................... 15

d. Witnesses & Documentary Evidence.................................................................................... 15

e. Attorneys’ fees ...................................................................................................................... 16

v. Post –Hearing Briefs ............................................................................................................. 17

a. Closing Arguments................................................................................................................ 17

b. Timelines for Briefs .............................................................................................................. 17

c. Timeline for Ruling/Award ................................................................................................... 18

d. Timeline for Appeal .............................................................................................................. 18


3

Trying a Workers’ Compensation Case before the Administrative Law Judge

The Georgia State Board of Workers’ Compensation oversees the processing and

resolution of workers’ compensation claims for over a quarter million employers and 3.8 million

injured workers.1 Under Georgia law, an injured worker is covered by workers’ compensation

insurance if the injury “arose out of” and “during the course and scope” of employment.

O.C.G.A. § 34-9-1 (4) delineates the requirements for an injured worker to recover

against his employer for an on-the-job injury. The Georgia workers’ compensation system is

designed to provide specific benefits to employees for injuries arising out of and in the course of

employment, without regard to negligence or fault. Workers’ compensation in Georgia is

considered a “no fault” system. Injured workers may pursue a workers’ compensation claim even

where the injuries arose from the employee’s own negligence. The system is also designed to

provide the employer with limited liability.

The Workers’ Compensation Act outlines a number of benefits an injured worker may

recover including replacement for 2/3 of any lost wages, medical payments, payments for

applicable disability ratings, and vocational rehabilitation services.

An Employee is entitled to indemnity benefits when they are (1) injured at work and (2)

such injury disables their ability to continue working. There are four types on income benefits

allowable under Georgia law: Temporary Total Disability Benefits, Temporary Partial Disability

Benefits and Permanent Partial Disability Benefits.

1 https://sbwc.georgia.gov/about-us

4

i. How a WC Case Becomes Litigated

Where facts concerning an existing claim become contested or liability is questioned, an

Employer or injured worker may request a hearing before an Administrative Law Judge. The

hearing request may designate specific contested issues or seek resolution of all issues.

There is no right to a trial by jury in a Georgia Workers’ Compensation case. When a

party is seeking relief or is contesting an issue in a claim, a party may request an evidentiary

hearing with the State Board. To initiate a hearing request, either party may file a Form WC-14

with the State Board of Workers’ Compensation. The filing party must designate specific issues

to be litigated and adjudicated at the scheduled hearing. Failure to include a specific hearing

issue may bar the request from being heard. Each party is entitled to prior notice and the

opportunity to be heard on all hearing issues. The WC-14 Hearing Request must be served on all

parties.2

A Form WC-14 is analogous to the filing of a Summons and Complaint in general civil

practice. Similar to general civil practice, the filing party should thoroughly investigate the claim

to ensure the proper parties are identified and the proper issues are raised. O.C.G.A. § 34-9-

102(a) provides a hearing before an administrative law judge may not be scheduled less than

thirty days nor more than ninety days from the date of the hearing notice. Generally, a first

setting hearing will be scheduled 30-45 days from the initial request. In practice, hearings rarely

go forward on the first setting. Scheduled hearings may be continued by agreement or with leave

of Court as needed.

2 Board Rule 82 (b)


3

Trying a Workers’ Compensation Case before the Administrative Law Judge

The Georgia State Board of Workers’ Compensation oversees the processing and

resolution of workers’ compensation claims for over a quarter million employers and 3.8 million

injured workers.1 Under Georgia law, an injured worker is covered by workers’ compensation

insurance if the injury “arose out of” and “during the course and scope” of employment.

O.C.G.A. § 34-9-1 (4) delineates the requirements for an injured worker to recover

against his employer for an on-the-job injury. The Georgia workers’ compensation system is

designed to provide specific benefits to employees for injuries arising out of and in the course of

employment, without regard to negligence or fault. Workers’ compensation in Georgia is

considered a “no fault” system. Injured workers may pursue a workers’ compensation claim even

where the injuries arose from the employee’s own negligence. The system is also designed to

provide the employer with limited liability.

The Workers’ Compensation Act outlines a number of benefits an injured worker may

recover including replacement for 2/3 of any lost wages, medical payments, payments for

applicable disability ratings, and vocational rehabilitation services.

An Employee is entitled to indemnity benefits when they are (1) injured at work and (2)

such injury disables their ability to continue working. There are four types on income benefits

allowable under Georgia law: Temporary Total Disability Benefits, Temporary Partial Disability

Benefits and Permanent Partial Disability Benefits.

1 https://sbwc.georgia.gov/about-us

4

i. How a WC Case Becomes Litigated

Where facts concerning an existing claim become contested or liability is questioned, an

Employer or injured worker may request a hearing before an Administrative Law Judge. The

hearing request may designate specific contested issues or seek resolution of all issues.

There is no right to a trial by jury in a Georgia Workers’ Compensation case. When a

party is seeking relief or is contesting an issue in a claim, a party may request an evidentiary

hearing with the State Board. To initiate a hearing request, either party may file a Form WC-14

with the State Board of Workers’ Compensation. The filing party must designate specific issues

to be litigated and adjudicated at the scheduled hearing. Failure to include a specific hearing

issue may bar the request from being heard. Each party is entitled to prior notice and the

opportunity to be heard on all hearing issues. The WC-14 Hearing Request must be served on all

parties.2

A Form WC-14 is analogous to the filing of a Summons and Complaint in general civil

practice. Similar to general civil practice, the filing party should thoroughly investigate the claim

to ensure the proper parties are identified and the proper issues are raised. O.C.G.A. § 34-9-

102(a) provides a hearing before an administrative law judge may not be scheduled less than

thirty days nor more than ninety days from the date of the hearing notice. Generally, a first

setting hearing will be scheduled 30-45 days from the initial request. In practice, hearings rarely

go forward on the first setting. Scheduled hearings may be continued by agreement or with leave

of Court as needed.

2 Board Rule 82 (b)


5

ii. Discovery

Once a hearing request has been filed, either party may request the opposing party

respond to formal discovery. The Georgia Civil Practices Act governs discovery in Workers’

Compensation claims. 3 Discovery may include, but is not limited to, depositions upon oral or

written examination, interrogatories, requests for production of documents and requests for

admissions. Alternatively, formal discovery may be served on third parties if requested records

are relevant to issues before the Board.

In accord to the Georgia Civil Practices Act (GCPA), when a party fails to comply with

discovery, the requesting party may petition the Court for an Order compelling compliance. A

Motion to Compel Discovery, like any Motion in the context of workers’ compensation, must be

filed on a WC Form 102(D).4 In compliance with GCPA, the Motion must be accompanied by a

Certificate of Service and properly served upon all parties.

Prior to filing a Motion to Compel Discovery, the requesting party must confer in good

faith with the responding party in an effort to resolve the discovery dispute. A Motion to Compel

Discovery may be filed when efforts to resolve in good faith are unsuccessful. In either scenario,

the filing party must certify on the Form WC-102D that a good faith effort to resolve the dispute

has been made. Once a WC-102D Motion has been filed, the responding party has fifteen (15)

days from the Certificate of Service to respond or object. Alternatively, a responding party who

seeks protection from the Court from responding to discovery may file a Motion for a Protective

Order. It should be noted that all Motions presented to the SBWC must be limited to fifty (50)

pages inclusive of supporting briefs and exhibits.

a. Common Discovery Disputes

3 Board Rule 102 (F)(2) and O.C.G.A. § 34-9-102(d)1 4 Board Rule 102 (D) (1)

6

There are a number of discovery disputes that routinely present in workers’ compensation

claim. Items parties often disagree on are the sequence of discovery, production of surveillance

materials and production of the adjuster’s claim file notes.

1. Sequence of Discovery In some instances, a party may attempt to require the production of written discovery

prior to a deposition. Generally, the Employer seeks to review the employee’s responses prior to

their deposition. The Georgia Civil Practices Act specifically addresses any question concerning

the sequence of discovery. GCPA provides methods of discovery may be used in any sequence

unless a judge upon Motion orders it is required for the convenience of parties, witnesses and

interests of justice. Accordingly, the Workers’ Compensation Act affords the Administrative

Law Judge discretion to issue Orders specifying the sequence of discovery. 5 In practice, parties

generally submit written discovery prior to a scheduled deposition.

2. Surveillance The issue of surveillance and the production thereof remains a hot topic in workers’

compensation claims. Parties routinely disagree about when and how surveillance should be

produced. Employees argue surveillance should be produced timely with any discovery requests.

Employers argue surveillance need not be produced prior to the employee’s deposition. The

Board has routinely addressed the issue by requiring employers to answer in the affirmative or

negative if surveillance has been taken. However, the Board does not require the Employer to

produce the documentation and surveillance at issue prior to the employee’s deposition.

Accordingly, the Board consistently affords the Employer the opportunity to test the Employee’s

5 O.C.G.A. § 34-9-102(d)(2)


5

ii. Discovery

Once a hearing request has been filed, either party may request the opposing party

respond to formal discovery. The Georgia Civil Practices Act governs discovery in Workers’

Compensation claims. 3 Discovery may include, but is not limited to, depositions upon oral or

written examination, interrogatories, requests for production of documents and requests for

admissions. Alternatively, formal discovery may be served on third parties if requested records

are relevant to issues before the Board.

In accord to the Georgia Civil Practices Act (GCPA), when a party fails to comply with

discovery, the requesting party may petition the Court for an Order compelling compliance. A

Motion to Compel Discovery, like any Motion in the context of workers’ compensation, must be

filed on a WC Form 102(D).4 In compliance with GCPA, the Motion must be accompanied by a

Certificate of Service and properly served upon all parties.

Prior to filing a Motion to Compel Discovery, the requesting party must confer in good

faith with the responding party in an effort to resolve the discovery dispute. A Motion to Compel

Discovery may be filed when efforts to resolve in good faith are unsuccessful. In either scenario,

the filing party must certify on the Form WC-102D that a good faith effort to resolve the dispute

has been made. Once a WC-102D Motion has been filed, the responding party has fifteen (15)

days from the Certificate of Service to respond or object. Alternatively, a responding party who

seeks protection from the Court from responding to discovery may file a Motion for a Protective

Order. It should be noted that all Motions presented to the SBWC must be limited to fifty (50)

pages inclusive of supporting briefs and exhibits.

a. Common Discovery Disputes

3 Board Rule 102 (F)(2) and O.C.G.A. § 34-9-102(d)1 4 Board Rule 102 (D) (1)

6

There are a number of discovery disputes that routinely present in workers’ compensation

claim. Items parties often disagree on are the sequence of discovery, production of surveillance

materials and production of the adjuster’s claim file notes.

1. Sequence of Discovery In some instances, a party may attempt to require the production of written discovery

prior to a deposition. Generally, the Employer seeks to review the employee’s responses prior to

their deposition. The Georgia Civil Practices Act specifically addresses any question concerning

the sequence of discovery. GCPA provides methods of discovery may be used in any sequence

unless a judge upon Motion orders it is required for the convenience of parties, witnesses and

interests of justice. Accordingly, the Workers’ Compensation Act affords the Administrative

Law Judge discretion to issue Orders specifying the sequence of discovery. 5 In practice, parties

generally submit written discovery prior to a scheduled deposition.

2. Surveillance The issue of surveillance and the production thereof remains a hot topic in workers’

compensation claims. Parties routinely disagree about when and how surveillance should be

produced. Employees argue surveillance should be produced timely with any discovery requests.

Employers argue surveillance need not be produced prior to the employee’s deposition. The

Board has routinely addressed the issue by requiring employers to answer in the affirmative or

negative if surveillance has been taken. However, the Board does not require the Employer to

produce the documentation and surveillance at issue prior to the employee’s deposition.

Accordingly, the Board consistently affords the Employer the opportunity to test the Employee’s

5 O.C.G.A. § 34-9-102(d)(2)


7

credibility while allowing the employee the opportunity to review full discovery in anticipation

of a scheduled hearing. 6

3. Adjuster Claim notes Another issue that is often disputed is the employee’s request for production of an

adjuster’s entire claim file including the adjuster’s claim notes. The insurer may raise an

objection to such requests as they may require the production of items or information that may

arguably contain the adjuster’s mental impressions or litigation strategy, information protected

by attorney-client privilege or protected work-product, or other information gathered in

anticipation of litigation. However, an employer may generally be required to produce contents

or information in a claim file that is relevant to the general administration of the claim,

authorization or unauthorization of medical treatment, communications with medical providers

or nurse case managers, communications with the employee, any recorded statements taken of

the employee by the adjuster, and any payments made for medical treatment or indemnity

benefits.

b. Limited Pre-Litigation Discovery

The Workers’ Compensation Act allows for limited discovery in matters where neither

the Employer nor Employee has filed a hearing request. Neither party may impose formal

discovery where a WC-14 Hearing Request has not been filed. The timeline for responding to

discovery outlined in GCPA does not commence until a WC-14 Hearing Request has been filed.7

The Workers’ Compensation Act delineates four (4) types of limited pre-litigation discovery:

Form WC-207- patient authorization form releasing medical records from the employee’s physician or health care providers

Medical Examination of Employee, commonly referred to as the Independent Medical

6 Association Servs., Inc. v. Smith, 549 S.E. 2d 454 (2001). 7 Board Rule 102 (F) (2)

8

Examination Form WC-12 Request for Copies of Board Records Form WC-102 Requests for Documents to Parties. The aforementioned requests are available to either party before or after a hearing request

have been filed. Where a party fails to timely respond to pre-litigation requests within 30 days,

the requesting party may petition the Board for penalties and assessed attorney’s fees.

iii. Preparing for Trial: Evidence & Other Tools

a. Surveillance

One of the tools utilized by employers and insurers in investigating claims is the use of

surveillance by professional investigators. Although it may be an effective took, employers do

not utilize surveillance in each and every claim as it can be costly and at times fail to yield

effective results. The employer and insurer may consider surveillance in cases where the

claimant is either taken out of work or placed light duty work restrictions by the authorized

treating physician and is not working. Other times, the employer and insurer will utilize

surveillance to determine whether or not the employee is working another job or engaged in

physical activities outside of their reported limitations. Additionally, if an employee is receiving

income benefits, however is failing to appear for authorized medical visits, this may raise an

employer and insurer’s suspicions on what activities the claimant may be engaged in giving rise

to use of surveillance.

An employer and insurer may also use surveillance as a tool towards achieving a

favorable settlement resolution in a case. Effective use of surveillance can help mitigate exposure

for income and medical benefits as well as encourage the parties to discuss settlement of the

claim in lieu of additional litigation. If an employer has conducted surveillance on an employee,

it may include anything from mobile to stationary video, social media background search,


7

credibility while allowing the employee the opportunity to review full discovery in anticipation

of a scheduled hearing. 6

3. Adjuster Claim notes Another issue that is often disputed is the employee’s request for production of an

adjuster’s entire claim file including the adjuster’s claim notes. The insurer may raise an

objection to such requests as they may require the production of items or information that may

arguably contain the adjuster’s mental impressions or litigation strategy, information protected

by attorney-client privilege or protected work-product, or other information gathered in

anticipation of litigation. However, an employer may generally be required to produce contents

or information in a claim file that is relevant to the general administration of the claim,

authorization or unauthorization of medical treatment, communications with medical providers

or nurse case managers, communications with the employee, any recorded statements taken of

the employee by the adjuster, and any payments made for medical treatment or indemnity

benefits.

b. Limited Pre-Litigation Discovery

The Workers’ Compensation Act allows for limited discovery in matters where neither

the Employer nor Employee has filed a hearing request. Neither party may impose formal

discovery where a WC-14 Hearing Request has not been filed. The timeline for responding to

discovery outlined in GCPA does not commence until a WC-14 Hearing Request has been filed.7

The Workers’ Compensation Act delineates four (4) types of limited pre-litigation discovery:

Form WC-207- patient authorization form releasing medical records from the employee’s physician or health care providers

Medical Examination of Employee, commonly referred to as the Independent Medical

6 Association Servs., Inc. v. Smith, 549 S.E. 2d 454 (2001). 7 Board Rule 102 (F) (2)

8

Examination Form WC-12 Request for Copies of Board Records Form WC-102 Requests for Documents to Parties. The aforementioned requests are available to either party before or after a hearing request

have been filed. Where a party fails to timely respond to pre-litigation requests within 30 days,

the requesting party may petition the Board for penalties and assessed attorney’s fees.

iii. Preparing for Trial: Evidence & Other Tools

a. Surveillance

One of the tools utilized by employers and insurers in investigating claims is the use of

surveillance by professional investigators. Although it may be an effective took, employers do

not utilize surveillance in each and every claim as it can be costly and at times fail to yield

effective results. The employer and insurer may consider surveillance in cases where the

claimant is either taken out of work or placed light duty work restrictions by the authorized

treating physician and is not working. Other times, the employer and insurer will utilize

surveillance to determine whether or not the employee is working another job or engaged in

physical activities outside of their reported limitations. Additionally, if an employee is receiving

income benefits, however is failing to appear for authorized medical visits, this may raise an

employer and insurer’s suspicions on what activities the claimant may be engaged in giving rise

to use of surveillance.

An employer and insurer may also use surveillance as a tool towards achieving a

favorable settlement resolution in a case. Effective use of surveillance can help mitigate exposure

for income and medical benefits as well as encourage the parties to discuss settlement of the

claim in lieu of additional litigation. If an employer has conducted surveillance on an employee,

it may include anything from mobile to stationary video, social media background search,


9

criminal background searches, hospital/medical canvas, telephone billing records, and other

metadata, including any information automatically generated and stored in any electronic file on

a computer, tablet, or smart phone.

b. Timelines for Exchange of Evidence

The parties are encouraged to complete exchange of written discovery responses

expediently and produce documents and other exhibits prior to the time of hearing. The Rule

states “prior to the commencement of a hearing, the parties shall consolidate any and all records,

including but not limited to medical records, and any other documentary evidence to be admitted

at a hearing in order to avoid any repetition and duplication.”8

However, there may be specific timeline requirements to producing particular types of

evidence. Any medical report or document signed and dated by an examining or treating

physician or other duly qualified medical practitioner shall be admissible in evidence insofar as it

purports to represent the history, examination, diagnosis, treatment, prognosis or opinion

relevant to any medical issue in the claim. 9 However, Board Rule 102(e)(3)(b) states “all

medical evidence regarding the treatment testing or evaluation of the claimant for the accident

which is the subject of the hearing should be exchanged between the parties as soon as

practicable, but no later than 10 days prior to the hearing, and all depositions should be

completed prior to the hearing.” The Rule further states that failure to exchange medical

evidence within 10 days of a hearing may, in the discretion of the Administrative Law Judge or

the Board, result in; (1) the imposition of civil penalties, (2) award of assessed attorney’s fees,

(3) a continuance, (4) award of costs, (5) award of witnesses’ fees and expenses, and/or (6) in

limited circumstances, the exclusion of evidence at the hearing.

8 Board Rule 103(a) 9 O.C.G.A. § 34-9-102(e)(2)

10

Additionally, Board Rule 102(e)(3)(c) states “if the amount of the average weekly wage

is in dispute, counsel shall exchange written contentions with regards to their methods of

calculation at least 10 days prior to the hearing, and shall present the written contentions to the

Administrative Law Judge at the commencement of the hearing.

c. Witness Subpoenas

The testimony of a witness, other than the employee, may be instrumental in a workers’

compensation claim. Both lay and expert witnesses may be subpoenaed by either party to testify

at a hearing. A witness may be subpoenaed to a hearing by filing a Form WC-Subpoena. The

Administrative Law Judge has the power to issue subpoenas. 10 Expert testimony may also be

required. Although rare, a physician may be called upon to testify at a hearing and be issued a

subpoena as an expert witness. 11 Generally, medical providers who examine or treat an

employee’s work injury may be called. However, it is more likely that the physician’s

deposition testimony is secured prior to the hearing and a party tenders the original transcript of

that deposition into the record. The Administrative Law Judge has the authority to receive this

transcript into evidence in lieu of the physician’s live testimony. 12

d. Hearing Postponements

Board Rule 102(c) generally governs the Board’s policies regarding postponements,

leave of absences, and legal conflicts. If a hearing is on the calendar for the first time and if all

parties agree to a postponement it can be rescheduled without consulting the Administrative Law

Judge before whom it is scheduled. The Rule requires that the agreement to postpone be

communicated to the Judge’s office no later than 2:00 p.m. on the business day immediately

10 O.C.G.A. § 34-9-102(c) 11 Board Rule 200(g) 12 O.C.G.A. §34-9-102(d)(3)


9

criminal background searches, hospital/medical canvas, telephone billing records, and other

metadata, including any information automatically generated and stored in any electronic file on

a computer, tablet, or smart phone.

b. Timelines for Exchange of Evidence

The parties are encouraged to complete exchange of written discovery responses

expediently and produce documents and other exhibits prior to the time of hearing. The Rule

states “prior to the commencement of a hearing, the parties shall consolidate any and all records,

including but not limited to medical records, and any other documentary evidence to be admitted

at a hearing in order to avoid any repetition and duplication.”8

However, there may be specific timeline requirements to producing particular types of

evidence. Any medical report or document signed and dated by an examining or treating

physician or other duly qualified medical practitioner shall be admissible in evidence insofar as it

purports to represent the history, examination, diagnosis, treatment, prognosis or opinion

relevant to any medical issue in the claim. 9 However, Board Rule 102(e)(3)(b) states “all

medical evidence regarding the treatment testing or evaluation of the claimant for the accident

which is the subject of the hearing should be exchanged between the parties as soon as

practicable, but no later than 10 days prior to the hearing, and all depositions should be

completed prior to the hearing.” The Rule further states that failure to exchange medical

evidence within 10 days of a hearing may, in the discretion of the Administrative Law Judge or

the Board, result in; (1) the imposition of civil penalties, (2) award of assessed attorney’s fees,

(3) a continuance, (4) award of costs, (5) award of witnesses’ fees and expenses, and/or (6) in

limited circumstances, the exclusion of evidence at the hearing.

8 Board Rule 103(a) 9 O.C.G.A. § 34-9-102(e)(2)

10

Additionally, Board Rule 102(e)(3)(c) states “if the amount of the average weekly wage

is in dispute, counsel shall exchange written contentions with regards to their methods of

calculation at least 10 days prior to the hearing, and shall present the written contentions to the

Administrative Law Judge at the commencement of the hearing.

c. Witness Subpoenas

The testimony of a witness, other than the employee, may be instrumental in a workers’

compensation claim. Both lay and expert witnesses may be subpoenaed by either party to testify

at a hearing. A witness may be subpoenaed to a hearing by filing a Form WC-Subpoena. The

Administrative Law Judge has the power to issue subpoenas. 10 Expert testimony may also be

required. Although rare, a physician may be called upon to testify at a hearing and be issued a

subpoena as an expert witness. 11 Generally, medical providers who examine or treat an

employee’s work injury may be called. However, it is more likely that the physician’s

deposition testimony is secured prior to the hearing and a party tenders the original transcript of

that deposition into the record. The Administrative Law Judge has the authority to receive this

transcript into evidence in lieu of the physician’s live testimony. 12

d. Hearing Postponements

Board Rule 102(c) generally governs the Board’s policies regarding postponements,

leave of absences, and legal conflicts. If a hearing is on the calendar for the first time and if all

parties agree to a postponement it can be rescheduled without consulting the Administrative Law

Judge before whom it is scheduled. The Rule requires that the agreement to postpone be

communicated to the Judge’s office no later than 2:00 p.m. on the business day immediately

10 O.C.G.A. § 34-9-102(c) 11 Board Rule 200(g) 12 O.C.G.A. §34-9-102(d)(3)


11

prior to the hearing by the party who has requested the hearing, or by any party by agreement.

Otherwise, a hearing shall be postponed only upon strict legal grounds, or at the discretion of the

Board or Administrative Law Judge.

If a case that has already been postponed previously, a second or subsequent request by

counsel to postpone the case from a calendar must be made no later than 2:00 p.m. on the

business day immediately before the scheduled hearing, and the request must be approved by the

Administrative Law Judge. The same time limitation applies for cases that are being removed

from the calendar with no reset in that said notification need to be provided to the Administrative

Law Judge at least by 2:00 p.m. on the business day immediately before the scheduled hearing.

The Administrative Law Judge at their discretion has the authority to remove a case from the

calendar not to be reset until the parties have certified that discovery is complete and the case is

ready to be tried, or in situations where the Judge determines that the case is not ready to

proceed.

The Rule further requires that a postponed hearing shall not be scheduled less than 30

days nor more than 90 days from the date of the hearing notice, unless agreed upon by the

parties, in which case it may be rescheduled for a shorter or longer period.13 Board Rule

102(c)(1)(c) further states that any party or attorney who fails to follow the cancellation,

postponement, or rescheduling procedures as outlined in these sections, and is unable to show

good cause for such failure may be subject to civil penalties, assessed attorney’s fees and/or

costs, including but not limited to the cost of the court reporter. The parties are required to notify

the Judge’s office immediately in the event that pending hearing issues have been resolve or if

the case has settled prior to a scheduled hearing date. The parties must notify the Administrative

13 See also O.C.G.A. §34-9-102(a)

12

Law Judge first by telephone call, and if instructed by the trial division, by subsequent written or

electronic confirmation.

Finally, Board Rule 102(c)(3) states that for the purposes of resolving requests for

continuances that are based upon a legal conflict, Rule 17.1(b)(4) of the Uniform Rules of the

Superior Courts are applicable. Conflict letters need to be served upon opposing counsel and

unrepresented parties no later than 7 days prior to the date of conflict but should not be filed with

the State Board unless or until such conflict letter is requested by the Administrative Law Judge

or the Board.

e. Pre-Hearing Exchange of Evidence

The Act encourages parties to work together to agree to stipulation and exhibits prior to a

scheduled hearing. It may be prudent to stipulate to exhibits prior to the scheduled hearing. The

Act specifically requires all medical evidence that is relevant to the hearing issues be exchanged

with the opposing party at least 10 days in advance of the scheduled hearing. 14 The rules also

require parties to ensure duplicative records are not produced at the hearing. 15

f. Pre-Hearing Conference Calls

In cases where one party will not agree to a continuance of a scheduled hearing before the

Administrative Law Judge, the parties may request a conference call before the Administrative

Law Judge prior to the scheduled hearing date to discuss either party’s reason for the request for

the postponement and the other party’s basis for the objection. The Administrative Law Judge

has in its discretion the authority to grant a postponement, deny a request to postpone a hearing,

or even request that the case be removed from the calendar until such time as the parties have

resolved any discovery disputes and/or are ready to proceed.

14 Board Rule 102(E)(3)(b) 15 Board Rule 102(E) (3) (a)


11

prior to the hearing by the party who has requested the hearing, or by any party by agreement.

Otherwise, a hearing shall be postponed only upon strict legal grounds, or at the discretion of the

Board or Administrative Law Judge.

If a case that has already been postponed previously, a second or subsequent request by

counsel to postpone the case from a calendar must be made no later than 2:00 p.m. on the

business day immediately before the scheduled hearing, and the request must be approved by the

Administrative Law Judge. The same time limitation applies for cases that are being removed

from the calendar with no reset in that said notification need to be provided to the Administrative

Law Judge at least by 2:00 p.m. on the business day immediately before the scheduled hearing.

The Administrative Law Judge at their discretion has the authority to remove a case from the

calendar not to be reset until the parties have certified that discovery is complete and the case is

ready to be tried, or in situations where the Judge determines that the case is not ready to

proceed.

The Rule further requires that a postponed hearing shall not be scheduled less than 30

days nor more than 90 days from the date of the hearing notice, unless agreed upon by the

parties, in which case it may be rescheduled for a shorter or longer period.13 Board Rule

102(c)(1)(c) further states that any party or attorney who fails to follow the cancellation,

postponement, or rescheduling procedures as outlined in these sections, and is unable to show

good cause for such failure may be subject to civil penalties, assessed attorney’s fees and/or

costs, including but not limited to the cost of the court reporter. The parties are required to notify

the Judge’s office immediately in the event that pending hearing issues have been resolve or if

the case has settled prior to a scheduled hearing date. The parties must notify the Administrative

13 See also O.C.G.A. §34-9-102(a)

12

Law Judge first by telephone call, and if instructed by the trial division, by subsequent written or

electronic confirmation.

Finally, Board Rule 102(c)(3) states that for the purposes of resolving requests for

continuances that are based upon a legal conflict, Rule 17.1(b)(4) of the Uniform Rules of the

Superior Courts are applicable. Conflict letters need to be served upon opposing counsel and

unrepresented parties no later than 7 days prior to the date of conflict but should not be filed with

the State Board unless or until such conflict letter is requested by the Administrative Law Judge

or the Board.

e. Pre-Hearing Exchange of Evidence

The Act encourages parties to work together to agree to stipulation and exhibits prior to a

scheduled hearing. It may be prudent to stipulate to exhibits prior to the scheduled hearing. The

Act specifically requires all medical evidence that is relevant to the hearing issues be exchanged

with the opposing party at least 10 days in advance of the scheduled hearing. 14 The rules also

require parties to ensure duplicative records are not produced at the hearing. 15

f. Pre-Hearing Conference Calls

In cases where one party will not agree to a continuance of a scheduled hearing before the

Administrative Law Judge, the parties may request a conference call before the Administrative

Law Judge prior to the scheduled hearing date to discuss either party’s reason for the request for

the postponement and the other party’s basis for the objection. The Administrative Law Judge

has in its discretion the authority to grant a postponement, deny a request to postpone a hearing,

or even request that the case be removed from the calendar until such time as the parties have

resolved any discovery disputes and/or are ready to proceed.

14 Board Rule 102(E)(3)(b) 15 Board Rule 102(E) (3) (a)


13

iv. Conduct of Hearings

A workers’ compensation hearing is a quasi-judicial proceeding before the State Board. The

Administrative Law Judge is bound by the rules of evidence and shall conduct the hearing in an

informal manner consistent with the requirements of due process.16 The Administrative Law

Judge is supposed to exclude evidence which is irrelevant, immaterial, or unduly repetitious.

a. Stipulations

At the commencement of a hearing it is general practice for an Administrative Law Judge

to ask counsel to specify the issues in dispute, whether the parties will stipulate to any facts or

element of the claim, and what relief the parties are relatively seeking. Although a party may

have requested a hearing seeking specific relief of medical or income benefits, or some

resolution of an issue, the hearing request is generally not exhaustive of the issues to be heard at

the time of hearing. Accordingly, it is ordinarily common for the parties to inform the

Administrative Law Judge what facts they are stipulating to so that the issues are narrowed for

the Judge’s consideration. For example, the parties may stipulate that the employer/insurer is

subject to the Act, that venue is proper in a particular county, and even stipulate that the

employee was in the general employment of the employer on the alleged date of injury.

Sometimes, however, basic elements of a claim are in dispute and so the parties are encouraged

to specify at the outset of a hearing and before the commencement of any testimony. Any fact

not stipulated to by the parties must be proven by the party carrying the burden as to that fact or

issue. Counsel for the employee should explain to the Judge specifically whether or not they are

seeking disability benefits and for what dates, whether or not they are seeking medical treatment

and, if so, with what provider, whether or not there is an issue with regards to the authorized

treating provider or a request for a change in physicians. Likewise, the employer is encouraged 16 O.C.G.A. § 34-9-102(e)(1)

14

to state on the record what relief is sought from the employer’s side, which may include an

award suspending benefits based upon a change in condition or medical non-compliance, seeking

relief for any overpayment of benefits that may have been paid to the claimant, and whether or

not the employer is asserting a specific affirmative defense. Providing this information to the

Administrative Law Judge at the outset of the hearing will help the Judge to determine which

party carries the legal burden of proof for a particular issue or fact.

A stipulation made at hearing is considered conclusive as to the fact(s) so stipulated such

that it precludes the introduction of any contradictory evidence. 17

b. Exhibits

It is incumbent upon the parties to consolidate any and all medical records and exhibits

and other documentary evidence to be admitted at the hearing in order to avoid any repetition or

duplication.18 The parties will generally have an opportunity to exchange exhibits prior to the

commencement of a hearing and determine whether or not any objections need to be made on the

record to any specific exhibits to be proffered. If either party has an objection to any exhibits to

be introduced, the Administrative Law Judge will hear any objections and make a ruling prior to

the commencement of a hearing, of whether or not a specific piece of evidence, documentary

evidence or medical record, will be admitted into the record.

At the conclusion of the evidentiary hearing, both parties will have the opportunity to

then formally tender their exhibits into the record for the Judge to consider and review prior to

issuing an Award. All documents, transcripts, exhibits, and other papers filed with the State

Board of Workers' Compensation shall be submitted on 8.5 x 11 inch paper only. The parties

should have each exhibit specifically identified by letter or Roman numeral. Sufficient space

17 Food Giant, Inc. v. Brown, 174 Ga. App. 485, 330 S.E. 2d 183 (1985) 18 Board Rule 102(E)(3)(a)


13

iv. Conduct of Hearings

A workers’ compensation hearing is a quasi-judicial proceeding before the State Board. The

Administrative Law Judge is bound by the rules of evidence and shall conduct the hearing in an

informal manner consistent with the requirements of due process.16 The Administrative Law

Judge is supposed to exclude evidence which is irrelevant, immaterial, or unduly repetitious.

a. Stipulations

At the commencement of a hearing it is general practice for an Administrative Law Judge

to ask counsel to specify the issues in dispute, whether the parties will stipulate to any facts or

element of the claim, and what relief the parties are relatively seeking. Although a party may

have requested a hearing seeking specific relief of medical or income benefits, or some

resolution of an issue, the hearing request is generally not exhaustive of the issues to be heard at

the time of hearing. Accordingly, it is ordinarily common for the parties to inform the

Administrative Law Judge what facts they are stipulating to so that the issues are narrowed for

the Judge’s consideration. For example, the parties may stipulate that the employer/insurer is

subject to the Act, that venue is proper in a particular county, and even stipulate that the

employee was in the general employment of the employer on the alleged date of injury.

Sometimes, however, basic elements of a claim are in dispute and so the parties are encouraged

to specify at the outset of a hearing and before the commencement of any testimony. Any fact

not stipulated to by the parties must be proven by the party carrying the burden as to that fact or

issue. Counsel for the employee should explain to the Judge specifically whether or not they are

seeking disability benefits and for what dates, whether or not they are seeking medical treatment

and, if so, with what provider, whether or not there is an issue with regards to the authorized

treating provider or a request for a change in physicians. Likewise, the employer is encouraged 16 O.C.G.A. § 34-9-102(e)(1)

14

to state on the record what relief is sought from the employer’s side, which may include an

award suspending benefits based upon a change in condition or medical non-compliance, seeking

relief for any overpayment of benefits that may have been paid to the claimant, and whether or

not the employer is asserting a specific affirmative defense. Providing this information to the

Administrative Law Judge at the outset of the hearing will help the Judge to determine which

party carries the legal burden of proof for a particular issue or fact.

A stipulation made at hearing is considered conclusive as to the fact(s) so stipulated such

that it precludes the introduction of any contradictory evidence. 17

b. Exhibits

It is incumbent upon the parties to consolidate any and all medical records and exhibits

and other documentary evidence to be admitted at the hearing in order to avoid any repetition or

duplication.18 The parties will generally have an opportunity to exchange exhibits prior to the

commencement of a hearing and determine whether or not any objections need to be made on the

record to any specific exhibits to be proffered. If either party has an objection to any exhibits to

be introduced, the Administrative Law Judge will hear any objections and make a ruling prior to

the commencement of a hearing, of whether or not a specific piece of evidence, documentary

evidence or medical record, will be admitted into the record.

At the conclusion of the evidentiary hearing, both parties will have the opportunity to

then formally tender their exhibits into the record for the Judge to consider and review prior to

issuing an Award. All documents, transcripts, exhibits, and other papers filed with the State

Board of Workers' Compensation shall be submitted on 8.5 x 11 inch paper only. The parties

should have each exhibit specifically identified by letter or Roman numeral. Sufficient space

17 Food Giant, Inc. v. Brown, 174 Ga. App. 485, 330 S.E. 2d 183 (1985) 18 Board Rule 102(E)(3)(a)


15

shall be left at the top of all documents so that all information will remain readable after the

documents have been filed. Copies of the items offered in evidence at a hearing must be

properly identified and tendered to opposing parties at the hearing. When submitting any

documents as evidence, the parties are not to use any tabs to separate the documents.19

c. Burdens of Proof

Once the Administrative Law Judge has heard all the stipulations, determined and

narrowed the issues in dispute and what relief each party is seeking, the Judge will make a

finding at the outset of the hearing as to who has the burden of proof. In a multi-issue hearing,

often each side will carry the burden of proof as to a specific issue. The burden of proof relative

to any party is generally established before the evidence is presented. The burden of proof may

sometimes be entirely on the employee as the claimant generally has the burden to prove his or

her entitlement to medical and income benefits. However, sometimes the burden of proof may

lie with the employer and insurer if the issue is, for instance, the denial of medical treatment, or

suspension of benefits based upon a change in condition. Additionally, if the employer has

asserted any affirmative defenses, such as an intoxication or willful misconduct defense, the

employer will generally have their burden of proof with regards to proving up their defense.

d. Witnesses & Documentary Evidence

Another matter ordinarily addressed at the beginning of a hearing will be counsel’s

advising the Administrative Law Judge what witnesses each party intends to call to testify.

Either party may call any fact or expert witness who will provide relevant testimony on any of

the issues to be heard before the Administrative Law Judge. The Administrative Law Judge may

invoke the rule of sequestration with regards to any witnesses who may be called to testify

19 Board Rule 102 (F)(4)

16

during the course of the hearing. However, the employer/insurer are generally allowed to have

an employer representative remain in the court room during the hearing as a party to the claim,

just as the claimant is allowed to remain for the entirety of the hearing. If the rule of

sequestration is applied, the Administrative Law Judge will instruct the witnesses on where to

stand, and swear them in prior to excusing them from the court room. The Administrative Law

Judge may also instruct the witnesses as to their conduct during the time they are testifying and

advise them on what they should do in the event that any party raises an objection during their

testimony.

e. Attorneys’ fees

At the end of a hearing, either party who is seeking an Award of attorney’s fees at that

time shall state so on the record and proffer their evidence in support of their claim for attorney’s

fees. O.C.G.A. § 34-9-108(b)(1) states “upon a determination that proceedings have been

brought, prosecuted, or defended in whole or in part without reasonable grounds, the

Administrative Law Judge or the Board may assess the adverse attorney’s fee against the

offending party. The Administrative Law Judge may also award to the adverse party in whole or

in part reasonable litigation expenses against the offending party.”

Although either party may request an Award of assessed attorney’s fees, the request is

generally made by counsel for the employee/claimant. Counsel for the employee/claimant may

also request approval of his or her fee contract at the conclusion of a hearing. If an Award of

income benefits is made by the Administrative Law Judge, and the Administrative Law Judge

approves the attorney fee contract, counsel for an employee/claimant may receive no more than

25% of the amount awarded in past income benefits to the claimant. Conversely, a party may

request an Award of assessed attorney’s fees on the grounds that the adverse party prosecuted or


15

shall be left at the top of all documents so that all information will remain readable after the

documents have been filed. Copies of the items offered in evidence at a hearing must be

properly identified and tendered to opposing parties at the hearing. When submitting any

documents as evidence, the parties are not to use any tabs to separate the documents.19

c. Burdens of Proof

Once the Administrative Law Judge has heard all the stipulations, determined and

narrowed the issues in dispute and what relief each party is seeking, the Judge will make a

finding at the outset of the hearing as to who has the burden of proof. In a multi-issue hearing,

often each side will carry the burden of proof as to a specific issue. The burden of proof relative

to any party is generally established before the evidence is presented. The burden of proof may

sometimes be entirely on the employee as the claimant generally has the burden to prove his or

her entitlement to medical and income benefits. However, sometimes the burden of proof may

lie with the employer and insurer if the issue is, for instance, the denial of medical treatment, or

suspension of benefits based upon a change in condition. Additionally, if the employer has

asserted any affirmative defenses, such as an intoxication or willful misconduct defense, the

employer will generally have their burden of proof with regards to proving up their defense.

d. Witnesses & Documentary Evidence

Another matter ordinarily addressed at the beginning of a hearing will be counsel’s

advising the Administrative Law Judge what witnesses each party intends to call to testify.

Either party may call any fact or expert witness who will provide relevant testimony on any of

the issues to be heard before the Administrative Law Judge. The Administrative Law Judge may

invoke the rule of sequestration with regards to any witnesses who may be called to testify

19 Board Rule 102 (F)(4)

16

during the course of the hearing. However, the employer/insurer are generally allowed to have

an employer representative remain in the court room during the hearing as a party to the claim,

just as the claimant is allowed to remain for the entirety of the hearing. If the rule of

sequestration is applied, the Administrative Law Judge will instruct the witnesses on where to

stand, and swear them in prior to excusing them from the court room. The Administrative Law

Judge may also instruct the witnesses as to their conduct during the time they are testifying and

advise them on what they should do in the event that any party raises an objection during their

testimony.

e. Attorneys’ fees

At the end of a hearing, either party who is seeking an Award of attorney’s fees at that

time shall state so on the record and proffer their evidence in support of their claim for attorney’s

fees. O.C.G.A. § 34-9-108(b)(1) states “upon a determination that proceedings have been

brought, prosecuted, or defended in whole or in part without reasonable grounds, the

Administrative Law Judge or the Board may assess the adverse attorney’s fee against the

offending party. The Administrative Law Judge may also award to the adverse party in whole or

in part reasonable litigation expenses against the offending party.”

Although either party may request an Award of assessed attorney’s fees, the request is

generally made by counsel for the employee/claimant. Counsel for the employee/claimant may

also request approval of his or her fee contract at the conclusion of a hearing. If an Award of

income benefits is made by the Administrative Law Judge, and the Administrative Law Judge

approves the attorney fee contract, counsel for an employee/claimant may receive no more than

25% of the amount awarded in past income benefits to the claimant. Conversely, a party may

request an Award of assessed attorney’s fees on the grounds that the adverse party prosecuted or


17

defended the claim upon unreasonable grounds. Board Rule 108(b)(6) states that when

requesting payment of attorney’s fees at a hearing under O.C.G.A. § 34-9-108, the party making

the request shall be required to demonstrate the reasonableness of the attorney’s fees requested

by placing into the record expert testimony as to the value of services rendered. Counsel may

testify personally or in affidavit form at the hearing, subject to cross-examination, as to their

expert status and the reasonable value of the services rendered in order to meet this requirement.

No attorney’s fees can be awarded pursuant to O.C.G.A. § 34-9-108 absent this evidence being

placed in the record.

v. Post –Hearing Briefs

a. Closing Arguments

Generally, opening and closing arguments are not permitted at the commencement or

close of the hearing before the Administrative Law Judge. A party may request a 5 minute oral

argument at the conclusion of the presentation of evidence, however, most Administrative Law

Judges prefer that counsels submit their closing argument via Brief.

b. Timelines for Briefs

The Administrative Law Judge will typically require the parties to submit their Briefs

anywhere from 10 to 15 days after the date upon which the court reporter files the hearing

transcript with the State Board and the Administrative Law Judge’s office. Briefs submitted to

the Administrative Law Judge shall be limited to 30 pages, unless otherwise approved by the

ALJ or the Board.20

20 Board Rule 102 (E)(4)

18

It is the policy of the Board to encourage the parties to close the record at the conclusion

of the hearing and the parties are expected to make diligent efforts to present all the evidence at

the hearing without the need for the record to remain open. 21

c. Timeline for Ruling/Award

Once the time for filing the Briefs has expired, the Administrative Law Judge will then

review the Briefs and the documentary evidence submitted at the hearing. The Judge is required

to issue an Award within 30 days of the completion of the evidence.22 In rare occasions, an

Administrative Law Judge may issue a decision at the time the hearing is concluded. However,

for the most part, Judges will likely take the opportunity to review the record and the

documentary evidence submitted, and review the arguments submitted in post-hearing Briefs by

both parties before entering an Award. An Administrative Law Judge generally prefers to fully

consider the details and the applicable law, to give thoughtful consideration in lieu of making a

snap judgment or decision.

d. Timeline for Appeal

Once an Administrative Law Judge issues an Award, a copy of the Award is sent to each

of the parties to the case to the last known address as listed with the State Board of Workers'

Compensation.23 If either party wishes to appeal an Award entered by the Administrative Law

Judge, a party has 20 days in which to file an application for review via a Notice of Appeal and

Enumeration of Errors to the Appellate Division. Within 10 days from the date of the Certificate

21 Board Rule 102(E)(5) 22 O.C.G.A. § 34-9-102(f) 23 O.C.G.A. § 34-9-102(f).


17

defended the claim upon unreasonable grounds. Board Rule 108(b)(6) states that when

requesting payment of attorney’s fees at a hearing under O.C.G.A. § 34-9-108, the party making

the request shall be required to demonstrate the reasonableness of the attorney’s fees requested

by placing into the record expert testimony as to the value of services rendered. Counsel may

testify personally or in affidavit form at the hearing, subject to cross-examination, as to their

expert status and the reasonable value of the services rendered in order to meet this requirement.

No attorney’s fees can be awarded pursuant to O.C.G.A. § 34-9-108 absent this evidence being

placed in the record.

v. Post –Hearing Briefs

a. Closing Arguments

Generally, opening and closing arguments are not permitted at the commencement or

close of the hearing before the Administrative Law Judge. A party may request a 5 minute oral

argument at the conclusion of the presentation of evidence, however, most Administrative Law

Judges prefer that counsels submit their closing argument via Brief.

b. Timelines for Briefs

The Administrative Law Judge will typically require the parties to submit their Briefs

anywhere from 10 to 15 days after the date upon which the court reporter files the hearing

transcript with the State Board and the Administrative Law Judge’s office. Briefs submitted to

the Administrative Law Judge shall be limited to 30 pages, unless otherwise approved by the

ALJ or the Board.20

20 Board Rule 102 (E)(4)

18

It is the policy of the Board to encourage the parties to close the record at the conclusion

of the hearing and the parties are expected to make diligent efforts to present all the evidence at

the hearing without the need for the record to remain open. 21

c. Timeline for Ruling/Award

Once the time for filing the Briefs has expired, the Administrative Law Judge will then

review the Briefs and the documentary evidence submitted at the hearing. The Judge is required

to issue an Award within 30 days of the completion of the evidence.22 In rare occasions, an

Administrative Law Judge may issue a decision at the time the hearing is concluded. However,

for the most part, Judges will likely take the opportunity to review the record and the

documentary evidence submitted, and review the arguments submitted in post-hearing Briefs by

both parties before entering an Award. An Administrative Law Judge generally prefers to fully

consider the details and the applicable law, to give thoughtful consideration in lieu of making a

snap judgment or decision.

d. Timeline for Appeal

Once an Administrative Law Judge issues an Award, a copy of the Award is sent to each

of the parties to the case to the last known address as listed with the State Board of Workers'

Compensation.23 If either party wishes to appeal an Award entered by the Administrative Law

Judge, a party has 20 days in which to file an application for review via a Notice of Appeal and

Enumeration of Errors to the Appellate Division. Within 10 days from the date of the Certificate

21 Board Rule 102(E)(5) 22 O.C.G.A. § 34-9-102(f) 23 O.C.G.A. § 34-9-102(f).


19

of Service on the Application for Review, the party filing the Notice of Appeal may request Oral

Argument.24

A party requesting a Review shall have 20 days from the date shown on the Certificate of

Service of the Application for Review in which to file their Brief with the Appellate Division.

The party shall certify that a copy of the Brief was served in person or by mail to all opposing

parties on the date the Brief is submitted to the State Board.25 The opposing party shall then

have 20 days from the date of Appellant’s or Cross-Appellant’s Certificate of Service to file a

Reply Brief with the State Board. Briefs shall generally follow the format required by the

Appellate Courts and only the original Brief is required to be filed with the Board. Briefs to the

Appellate Division shall be limited to 20 pages unless otherwise approved by the Board.26

24 Board Rule 103(b). 25 Board Rule 103(b)(2). 26 Board Rule 103(b)(4).

3682462v.1

9:30 STATE OF THE BOARD/ICMS Hon. Viola S. Drew, Administrative Law Judge, State Board of Workers’ Compensation, Atlanta


10:10 APPEALING THE WORKERS’ COMPENSATION AWARD Christopher K. Gifford, Law Offices of Benjamin Y. Gerber LLC, Atlanta Lynn B. Olmert, McAngus Goudelock & Courie, Atlanta












11:00 MEDIATING AND SETTLING A WORKERS’ COMPENSATION CLAIM David M. Kay, Settlement Division Director, State Board of Workers’ Compensation, Atlanta Kyle D. Johnston, Tillman & Associates, Atlanta Kelly R. Speir, Levy Sibley Foreman & Speir LLC, Atlanta


Mediating and Settling Workers’ Compensation Cases

David Kay Settlement Division Director, State Board of Worker’s Compensation

Atlanta, Georgia

Kyle D. Johnston Tillman & Associates, Attorneys at Law

Atlanta, Georgia

Kelly R. Speir Levy, Sibley, Foreman & Speir, LLC

Atlanta, Georgia

1

WORKERS’ COMPENSATION MEDIATIONS

General Considerations

Like many areas of law, Workers’ Compensation claims lend themselves to settlement, and the vast majority of workers’ compensations claims do eventually settle at some point during the life of the claim. To that end, settlement mediations are a very popular and valuable tool available to accomplish that goal.

Alternative Dispute Resolution Division Mediation v. Private Mediation

Parties to a workers’ compensation claim who wish to pursue mediation have the option of doing so either through the ADR Division of the State Board of Workers’ Compensation (aka Board Mediation), or alternatively, through a private mediation firm.

A. Board Mediations

The primary Statute and Board Rule that govern both the ADR Division, and more specifically, Board mediations, can be found in O.C.G.A. §34-9-100 and Board Rule 100. The primary advantage of pursuing a Board mediation is that it is offered to the parties at no expense.

In most instances, a Board mediation is a voluntary process whereby all parties to the claim must agree to participate. Assuming all parties are in agreement, one of the parties will file Board Form WC-100, (A copy of the WC-100 is available on the State Board’s website at https://sbwc.georgia.gov/sites/sbwc.georgia.gov/files/board_forms/wc100.pdf), which formally requests that the Board assign and schedule a mediation with the ADR Division. A copy of the WC-100 must also be served to all the parties to the action at the time it is filed. The parties will then in short order receive a Mediation Notice stating the date, time and location of the mediation. On average, the mediation will be scheduled a month to a month and a half after filing of the WC-100, although you can call the Board and request an expedited mediation setting.

Although utilized sparingly in actual practice, both the ADR Division and each Administrative Law Judge (ALJ) at the Board have the authority to direct the parties to attend a Board mediation when deemed appropriate by the Board. Although not an exhaustive list, some more common reasons that the Board may order that a mediation be scheduled are to address a request for a change in physician by one of the parties, or alternatively, to address a lien dispute between two or more claimant attorneys who have worked on the case prior to the mediation. It is important to note that when a mediation is ordered by the Board (or requested by the parties directly), participation in the mediation does not abridge the parties’ rights to a subsequent evidentiary hearing at


Mediating and Settling Workers’ Compensation Cases

David Kay Settlement Division Director, State Board of Worker’s Compensation

Atlanta, Georgia

Kyle D. Johnston Tillman & Associates, Attorneys at Law

Atlanta, Georgia

Kelly R. Speir Levy, Sibley, Foreman & Speir, LLC

Atlanta, Georgia

1

WORKERS’ COMPENSATION MEDIATIONS

General Considerations

Like many areas of law, Workers’ Compensation claims lend themselves to settlement, and the vast majority of workers’ compensations claims do eventually settle at some point during the life of the claim. To that end, settlement mediations are a very popular and valuable tool available to accomplish that goal.

Alternative Dispute Resolution Division Mediation v. Private Mediation

Parties to a workers’ compensation claim who wish to pursue mediation have the option of doing so either through the ADR Division of the State Board of Workers’ Compensation (aka Board Mediation), or alternatively, through a private mediation firm.

A. Board Mediations

The primary Statute and Board Rule that govern both the ADR Division, and more specifically, Board mediations, can be found in O.C.G.A. §34-9-100 and Board Rule 100. The primary advantage of pursuing a Board mediation is that it is offered to the parties at no expense.

In most instances, a Board mediation is a voluntary process whereby all parties to the claim must agree to participate. Assuming all parties are in agreement, one of the parties will file Board Form WC-100, (A copy of the WC-100 is available on the State Board’s website at https://sbwc.georgia.gov/sites/sbwc.georgia.gov/files/board_forms/wc100.pdf), which formally requests that the Board assign and schedule a mediation with the ADR Division. A copy of the WC-100 must also be served to all the parties to the action at the time it is filed. The parties will then in short order receive a Mediation Notice stating the date, time and location of the mediation. On average, the mediation will be scheduled a month to a month and a half after filing of the WC-100, although you can call the Board and request an expedited mediation setting.

Although utilized sparingly in actual practice, both the ADR Division and each Administrative Law Judge (ALJ) at the Board have the authority to direct the parties to attend a Board mediation when deemed appropriate by the Board. Although not an exhaustive list, some more common reasons that the Board may order that a mediation be scheduled are to address a request for a change in physician by one of the parties, or alternatively, to address a lien dispute between two or more claimant attorneys who have worked on the case prior to the mediation. It is important to note that when a mediation is ordered by the Board (or requested by the parties directly), participation in the mediation does not abridge the parties’ rights to a subsequent evidentiary hearing at


2

the Board should the mediation prove unsuccessful in resolving all issues. A mediation can be requested by the parties at any time in a case and there is no requirement that the claim be on the hearing (aka trial) calendar in order to schedule a mediation.

As is to be expected, all communications that take place in the context of Board mediation are confidential and not subject to disclosure by any mediator, party, attorney, attendee, or Board employee and may not be used as evidence in any proceeding. The exceptions to this rule are with respect to: 1) threats of violence to the mediator or others; 2) security personnel or law enforcement officials; 3) party or attorney misconduct; 4) legal or disciplinary complaints brought against a mediator or attorney arising out of and in the course of a mediation; 5) appearance; and 6) the list of physicians submitted to an ALJ by the parties when they have been ordered by the ALJ to submit the names and the issue has not been resolved through mediation. (Practice Tip: Act professionally at mediation).

A possible advantage to Board mediations is that you can request that one of the ALJs act as your mediator (obviously not the ALJ assigned to your case). This can be particularly helpful when the case involves sticky points of law in which the parties disagree or when the claimant or adjuster/employer representative are the type that will be more easily persuaded when it is an ALJ that is discussing the strengths/weaknesses of the case with them. This of course is not to demean the knowledge, ability and efficacy of the other Board mediators, as they are all capable.

If a settlement is reached at a Board mediation, the mediator will prepare a written Mediation Summary Document signed by each party in attendance memorializing the terms of the agreement. Unlike in some other areas of the law, this agreement is not legally binding on the parties. The case is not legally settled until formalized settlement documents (which are sometimes brought to and signed at a mediation) are submitted to the Board and are approved by the Settlement Division.

B. Private mediations

For a variety of reasons, the option of private mediation has become increasingly popular in the area of workers’ compensation. The reasons for this are beyond the scope of this presentation, but suffice it to say, both Board and Private mediations have their unique advantages. Often times the decision as to which one to pursue are case specific and I have had very good success utilizing both and continue to utilize both in my practice.

If there can be said to be a disadvantage to private mediation it would of course be that it costs money. Unlike a Board mediation, where by default the parties are randomly assigned a mediator (Practice Tip: you can request a specific mediator at the

3

Board, including an ALJ as addressed above), when the parties agree to privately mediate they will typically choose a mutually agreeable mediator. An additional advantage to private mediation is there is a great deal of flexibility in choosing a location as well as the date and time for the mediation.

In most instances, a private mediator is a seasoned workers’ compensation practitioner who has developed a reputation for a deep understanding of the law, strong relationships with many of the practitioners in this area of practice, and an ability to communicate effectively to all the different personalities they may encounter in any given mediation. They can often times leverage their relationships with the parties involved (including the adjusters) to help reach a favorable settlement for all involved.

It is wise prior to mediation to have an agreement in writing as to which party will be paying for the mediation. Most private mediators will by default split the cost of the mediation and bill each party half the cost unless directed otherwise. Sometimes the Employer/Insurer will agree to pay the cost of private mediation or often times will only agree to pay the full cost in the event the case actually settles. The bottom line is you can work out any payment arrangement beforehand…just make sure to memorialize it in writing prior to the mediation and let the mediator know. (Practice Tip: in a very close settlement scenario, if the Employer/Insurer has not agreed to cover the cost of the mediation prior to it taking place, you can often times request they agree to cover the cost at the mediation if that is what it will take to bridge the gap so to speak and get the case settled).

Although Board Rule 100 appears to apply specifically to Board mediations, it can be safely inferred that all the same rules of conduct and confidentiality equally apply to private mediations as well. Likewise, any agreement reached at a private mediation is not binding on the parties until approved by the Board.

Misc. Considerations/Musings

As a claimant’s attorney, there are two primary reasons that I find mediations helpful. They are: 1) when I have a difficult client; and 2) to have a date certain on the calendar by which the defense attorney and adjuster must be prepared to get the case settled.

While I like to believe I have good rapport with my clients, from time to time we all have that client that seems to distrust their own lawyer even more than the other side. While certainly not unique to workers’ compensation, in those instances, it is very helpful to have a third-party neutral support your arguments and positions to your client, especially when it comes to conveying weakness in the case.


2

the Board should the mediation prove unsuccessful in resolving all issues. A mediation can be requested by the parties at any time in a case and there is no requirement that the claim be on the hearing (aka trial) calendar in order to schedule a mediation.

As is to be expected, all communications that take place in the context of Board mediation are confidential and not subject to disclosure by any mediator, party, attorney, attendee, or Board employee and may not be used as evidence in any proceeding. The exceptions to this rule are with respect to: 1) threats of violence to the mediator or others; 2) security personnel or law enforcement officials; 3) party or attorney misconduct; 4) legal or disciplinary complaints brought against a mediator or attorney arising out of and in the course of a mediation; 5) appearance; and 6) the list of physicians submitted to an ALJ by the parties when they have been ordered by the ALJ to submit the names and the issue has not been resolved through mediation. (Practice Tip: Act professionally at mediation).

A possible advantage to Board mediations is that you can request that one of the ALJs act as your mediator (obviously not the ALJ assigned to your case). This can be particularly helpful when the case involves sticky points of law in which the parties disagree or when the claimant or adjuster/employer representative are the type that will be more easily persuaded when it is an ALJ that is discussing the strengths/weaknesses of the case with them. This of course is not to demean the knowledge, ability and efficacy of the other Board mediators, as they are all capable.

If a settlement is reached at a Board mediation, the mediator will prepare a written Mediation Summary Document signed by each party in attendance memorializing the terms of the agreement. Unlike in some other areas of the law, this agreement is not legally binding on the parties. The case is not legally settled until formalized settlement documents (which are sometimes brought to and signed at a mediation) are submitted to the Board and are approved by the Settlement Division.

B. Private mediations

For a variety of reasons, the option of private mediation has become increasingly popular in the area of workers’ compensation. The reasons for this are beyond the scope of this presentation, but suffice it to say, both Board and Private mediations have their unique advantages. Often times the decision as to which one to pursue are case specific and I have had very good success utilizing both and continue to utilize both in my practice.

If there can be said to be a disadvantage to private mediation it would of course be that it costs money. Unlike a Board mediation, where by default the parties are randomly assigned a mediator (Practice Tip: you can request a specific mediator at the

3

Board, including an ALJ as addressed above), when the parties agree to privately mediate they will typically choose a mutually agreeable mediator. An additional advantage to private mediation is there is a great deal of flexibility in choosing a location as well as the date and time for the mediation.

In most instances, a private mediator is a seasoned workers’ compensation practitioner who has developed a reputation for a deep understanding of the law, strong relationships with many of the practitioners in this area of practice, and an ability to communicate effectively to all the different personalities they may encounter in any given mediation. They can often times leverage their relationships with the parties involved (including the adjusters) to help reach a favorable settlement for all involved.

It is wise prior to mediation to have an agreement in writing as to which party will be paying for the mediation. Most private mediators will by default split the cost of the mediation and bill each party half the cost unless directed otherwise. Sometimes the Employer/Insurer will agree to pay the cost of private mediation or often times will only agree to pay the full cost in the event the case actually settles. The bottom line is you can work out any payment arrangement beforehand…just make sure to memorialize it in writing prior to the mediation and let the mediator know. (Practice Tip: in a very close settlement scenario, if the Employer/Insurer has not agreed to cover the cost of the mediation prior to it taking place, you can often times request they agree to cover the cost at the mediation if that is what it will take to bridge the gap so to speak and get the case settled).

Although Board Rule 100 appears to apply specifically to Board mediations, it can be safely inferred that all the same rules of conduct and confidentiality equally apply to private mediations as well. Likewise, any agreement reached at a private mediation is not binding on the parties until approved by the Board.

Misc. Considerations/Musings

As a claimant’s attorney, there are two primary reasons that I find mediations helpful. They are: 1) when I have a difficult client; and 2) to have a date certain on the calendar by which the defense attorney and adjuster must be prepared to get the case settled.

While I like to believe I have good rapport with my clients, from time to time we all have that client that seems to distrust their own lawyer even more than the other side. While certainly not unique to workers’ compensation, in those instances, it is very helpful to have a third-party neutral support your arguments and positions to your client, especially when it comes to conveying weakness in the case.


4

Many workers’ compensation adjusters and defense attorneys are operating under a very heavy work load and often times have to prioritize what is “hot” out of necessity. While I love being able to get a case informally settled the old fashioned way, the reality is that without a mediation on the books, you run the risk of having to wait to receive a first offer longer than you would like. Having the mediation scheduled gives the defense (and the adjuster) a date certain by which they have to be ready. Of course, this also keeps the claimant’s attorney on their toes as well since you need to get your Settlement Demand over to defense counsel well in advance of the mediation. In short, it forces both attorneys to prioritize the case. (Practice Tip: In a private mediation, it is wise to send a copy of the Settlement Demand to the mediator prior to the mediation so that they can familiarize themselves with the case, at a minimum, from the Claimant’s perspective. Likewise, there is equal value in a defense attorney submitting a Pre-Mediation Summary to the mediator outlining their position. Both serve to help make things go quicker and smoother at mediation).

While it is likely true in most practice areas, right or wrong, workers’ compensation claimants do tend to harbor a strong sense that an injustice has been exercised upon them. This does make sense given an individual’s job is of such great importance, and the disruption a comp claim causes can wreak havoc on their self-esteem and finances. I bring this up because I have found that quite frequently my clients need to feel as if they have an opportunity to tell their story and air their grievances with the other side. Mediation actually gives them an opportunity to do this. After instructing them to be respectful in their delivery, I have had many a client sit across from the defense attorney, the adjuster, the employer rep (even just the mediator) and express the frustration they have felt throughout the claim. I have seen how cathartic it is for them and it actually can mean the difference between getting a case settled and not getting it settled, especially if they are the type that demands their “day in court.” I have found that my clients’ “day in court” is really code for, “I want the other side to know how upset I am.” (Practice Tip: Use mediation for this).

Be prepared for mediation. Know your case. Don’t be the lawyer that does not know who the Authorized Treating Physician is or what your client’s Average Weekly Wage is. If you are doing defense, have adequate authority to get the claim settled and make sure the decision maker on authority (i.e. adjuster) is at a minimum available by phone should the need arise to seek additional authority at the mediation. If you are representing claimants, prepare your client as to the reasonable value of the claim so you are not trying to explain to them at the mediation why your demand was 17 million but you and the mediator are encouraging them to settle for 35k.

If you represent a claimant and have been terminated or have withdrawn and have filed a lien with the Board, you must attend any future mediation (and hearing) or

5

have an agreement in writing (in the case of a mediation) from the new claimant’s attorney that they will agree to protect your lien. If not, you can lose your lien right.

Get out there and settle some cases.

STIPULATED SETTLEMENT BASICS AND TEMPLATES

Drafting and Filing a Stipulated Settlement All settlements of Workers’ Compensation claims in Georgia must be approved by the State Board to be valid and binding. Caldwell v. Perry, 179 Ga. App. 682, 347 S.E.2d 286 (1986). O.C.G.A.§34-9-15(a) encourages settlements, so long as the amount of compensation and the time and manner of payment are in accordance with law. Board Rule 15 details the general procedures to be followed when submitting stipulated settlements for approval. Types of Settlements

There are two separate types of settlements: Liability settlement (also known as “bona fide dispute stipulation and agreement”), and No-Liability settlements. A liability stipulation must be utilized in accepted cases but may also be utilized in cases for which liability has been expressly denied. In the alternative, a no-liability settlement may not be utilized in cases for which liability has been established. Ordinarily, a liability or no-liability settlement will provide for a single lump sum settlement figure but, on occasion, the Employer/Insurer will instead purchase an annuity and payments can be made in installments.

1. Liability Stipulations – O.C.G.A. § 34-9-15(a), Board Rule 15(g); Liability stipulations must be used in cases for which liability has been established and there is a bona fide dispute of to the facts that would affect the right of the employee to recover compensation.

a. Establishment of Liability: Liability can be established either by payment of indemnity benefits by the Employer/Insurer or issuance of an Award finding the claim being compensable by the State Board (and has not been reversed on appeal). This includes any case for which indemnity benefits have been paid for by the Employer/Insurer as identified in a WC-2 Notice of Payment and/or WC-1 First Report of Injury with executed Section C, Income Benefits. This also includes Board filings that reflect receipt of salary in lieu of workers’ compensation benefits.

b. Valid Controvert of Liability – If the Employer/Insurer initially accept liability but subsequently and validly controvert the overall liability of the claim within the first 81 days, liability has not been established and a no-liability stipulation would be acceptable. In the alternative, if the Employer/Insurer accept liability but after the 81 day period controvert receipt of future


4

Many workers’ compensation adjusters and defense attorneys are operating under a very heavy work load and often times have to prioritize what is “hot” out of necessity. While I love being able to get a case informally settled the old fashioned way, the reality is that without a mediation on the books, you run the risk of having to wait to receive a first offer longer than you would like. Having the mediation scheduled gives the defense (and the adjuster) a date certain by which they have to be ready. Of course, this also keeps the claimant’s attorney on their toes as well since you need to get your Settlement Demand over to defense counsel well in advance of the mediation. In short, it forces both attorneys to prioritize the case. (Practice Tip: In a private mediation, it is wise to send a copy of the Settlement Demand to the mediator prior to the mediation so that they can familiarize themselves with the case, at a minimum, from the Claimant’s perspective. Likewise, there is equal value in a defense attorney submitting a Pre-Mediation Summary to the mediator outlining their position. Both serve to help make things go quicker and smoother at mediation).

While it is likely true in most practice areas, right or wrong, workers’ compensation claimants do tend to harbor a strong sense that an injustice has been exercised upon them. This does make sense given an individual’s job is of such great importance, and the disruption a comp claim causes can wreak havoc on their self-esteem and finances. I bring this up because I have found that quite frequently my clients need to feel as if they have an opportunity to tell their story and air their grievances with the other side. Mediation actually gives them an opportunity to do this. After instructing them to be respectful in their delivery, I have had many a client sit across from the defense attorney, the adjuster, the employer rep (even just the mediator) and express the frustration they have felt throughout the claim. I have seen how cathartic it is for them and it actually can mean the difference between getting a case settled and not getting it settled, especially if they are the type that demands their “day in court.” I have found that my clients’ “day in court” is really code for, “I want the other side to know how upset I am.” (Practice Tip: Use mediation for this).

Be prepared for mediation. Know your case. Don’t be the lawyer that does not know who the Authorized Treating Physician is or what your client’s Average Weekly Wage is. If you are doing defense, have adequate authority to get the claim settled and make sure the decision maker on authority (i.e. adjuster) is at a minimum available by phone should the need arise to seek additional authority at the mediation. If you are representing claimants, prepare your client as to the reasonable value of the claim so you are not trying to explain to them at the mediation why your demand was 17 million but you and the mediator are encouraging them to settle for 35k.

If you represent a claimant and have been terminated or have withdrawn and have filed a lien with the Board, you must attend any future mediation (and hearing) or

5

have an agreement in writing (in the case of a mediation) from the new claimant’s attorney that they will agree to protect your lien. If not, you can lose your lien right.

Get out there and settle some cases.

STIPULATED SETTLEMENT BASICS AND TEMPLATES

Drafting and Filing a Stipulated Settlement All settlements of Workers’ Compensation claims in Georgia must be approved by the State Board to be valid and binding. Caldwell v. Perry, 179 Ga. App. 682, 347 S.E.2d 286 (1986). O.C.G.A.§34-9-15(a) encourages settlements, so long as the amount of compensation and the time and manner of payment are in accordance with law. Board Rule 15 details the general procedures to be followed when submitting stipulated settlements for approval. Types of Settlements

There are two separate types of settlements: Liability settlement (also known as “bona fide dispute stipulation and agreement”), and No-Liability settlements. A liability stipulation must be utilized in accepted cases but may also be utilized in cases for which liability has been expressly denied. In the alternative, a no-liability settlement may not be utilized in cases for which liability has been established. Ordinarily, a liability or no-liability settlement will provide for a single lump sum settlement figure but, on occasion, the Employer/Insurer will instead purchase an annuity and payments can be made in installments.

1. Liability Stipulations – O.C.G.A. § 34-9-15(a), Board Rule 15(g); Liability stipulations must be used in cases for which liability has been established and there is a bona fide dispute of to the facts that would affect the right of the employee to recover compensation.

a. Establishment of Liability: Liability can be established either by payment of indemnity benefits by the Employer/Insurer or issuance of an Award finding the claim being compensable by the State Board (and has not been reversed on appeal). This includes any case for which indemnity benefits have been paid for by the Employer/Insurer as identified in a WC-2 Notice of Payment and/or WC-1 First Report of Injury with executed Section C, Income Benefits. This also includes Board filings that reflect receipt of salary in lieu of workers’ compensation benefits.

b. Valid Controvert of Liability – If the Employer/Insurer initially accept liability but subsequently and validly controvert the overall liability of the claim within the first 81 days, liability has not been established and a no-liability stipulation would be acceptable. In the alternative, if the Employer/Insurer accept liability but after the 81 day period controvert receipt of future


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indemnity and/or medical benefits, this will not change the fact that liability has already been established and settlement requires a liability stipulation unless an Award from the State Board finds otherwise.

c. Payment of Medical – Payment of medical expenses only does not constitute a binding acceptance of liability.

d. Leaving Medical Future “Open” - The parties can agree to settle indemnity benefits in a liability stipulation but agree that the Employer/Insurer will continue to pay for authorized future medical expenses. In these cases, the State Board retains jurisdiction to make the determination of future medical disputes. Should the parties later agree to settle the medical portion of the claim, an Addendum to Stipulation can be filed with the State Board.

2. No-Liability Stipulations – O.C.G.A. § 34-9-15(b) & (c); No-Liability Stipulations can be utilized in cases for which indemnity benefits have not been paid nor has the Board deemed the claim compensable by Award.

a. “Medical Only” Claims – If the Employer/Insurer has paid for medical treatment but not paid indemnity benefits, the claim can still be settled on a no-liability basis. This includes cases for which the employee has continued to work post-accident, either light duty or full duty work, and/or the Employer/Insurer has controverted indemnity payments.

b. Payment of Medical in No-Liability Stipulations– The parties can agree that the Employer/Insurer is to pay current or outstanding medical expenses even if settlement is agreed upon on a no-liability basis. However, it should be noted that once the State Board approves the no-liability stipulation, it no longer retains jurisdiction in regard to any dispute that would arise between the parties as to the payment of future medical expenses. Therefore, the Board will not approve a no-liability settlement that leaves future medical open indefinitely.

Captions, copies and associating multiple files The caption on the first page of the stipulated settlement must include the

name, address and telephone number of each party to the agreement. The employee’s attorney must also provide his or her Federal Tax I.D. number. Rule 15(a)(2). Leave the top five inches blank above the caption for the approval stamp. Rule 15(a)(7).

If filing electronically, submit one copy of the stipulation and one copy of the supporting documents to the Board. Separate the stipulation from the supporting documents. The supporting documents should be filed as “stip supplemental.” Rule 15(a)(1). If filing electronically, please do not send duplicative documents in paper to the Board. The electronic filing is sufficient.

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If the stipulation covers multiple Board claim files, file the stipulation in one claim file with the other claim files “associated.” Please call the Settlement Division for information on how to associate files, if needed. Do not file a duplicate stipulation in each of several files separately, as each one will be processed separately, resulting in delay and possible confusion.

Bona fide dispute

Stipulated settlements must state with specificity the legal and/or factual matters about which the parties cannot agree. Issues such as length of disability, degree of disability, ability of employee to return to regular duty work, need for further medical expenses, liability, permanent partial disability, and dependency may be considered. Rule 15(b)(1).

Past and future medical expenses

Liability stipulations must state that all incurred medical expenses, which were reasonable and necessary, have been or will be paid by the employer/insurer. Rule 15(b)(2). You may choose to discuss the claimant’s medical treatment, but it is not mandatory to include the entire medical history of the claim or the total amount spent on past medical expenses.

The need for future medical treatment must be addressed. If future medical treatment will not be made available, a rationale for closing medical treatment must be provided.

Attorney fees & expenses

All fees must conform to O.C.G.A. §34-9-108 and Board Rule 108, in addition to Rule 15(e). In structured settlements, attorney fees are based on present value. The cost of the structure/annuity is required.

Expenses must be itemized, and this itemization must be provided to

the Board in the stipulated settlement or as a stip supplemental document. The Board will reject a stipulation which contains expenses that violate Georgia law, Board Rules, or Georgia State Bar Rules of Professional Conduct. For example, Rule 15(k) prohibits any party, or party’s attorney, from entering into a loan with a third party creditor which requires repayment from the proceeds of a workers’ compensation claim. Thus, the Board will reject any stipulation which lists repayment of such a loan as an expense.

No attorney fee can be calculated on money designated for medical expenses. If no money is designated for medical expenses in the stipulation, the Board may make confidential inquiry as to why, depending on the amount of the settlement, the medical condition of the claimant, and the totality of the circumstances.

Because the attorney fee cannot be taken on money designated for medical, the settlement of medical benefits alone is not subject to attorney fees. This may come up in claims where indemnity benefits are settled at one time, leaving medical open, and the parties later decide to settle medical benefits.


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indemnity and/or medical benefits, this will not change the fact that liability has already been established and settlement requires a liability stipulation unless an Award from the State Board finds otherwise.

c. Payment of Medical – Payment of medical expenses only does not constitute a binding acceptance of liability.

d. Leaving Medical Future “Open” - The parties can agree to settle indemnity benefits in a liability stipulation but agree that the Employer/Insurer will continue to pay for authorized future medical expenses. In these cases, the State Board retains jurisdiction to make the determination of future medical disputes. Should the parties later agree to settle the medical portion of the claim, an Addendum to Stipulation can be filed with the State Board.

2. No-Liability Stipulations – O.C.G.A. § 34-9-15(b) & (c); No-Liability Stipulations can be utilized in cases for which indemnity benefits have not been paid nor has the Board deemed the claim compensable by Award.

a. “Medical Only” Claims – If the Employer/Insurer has paid for medical treatment but not paid indemnity benefits, the claim can still be settled on a no-liability basis. This includes cases for which the employee has continued to work post-accident, either light duty or full duty work, and/or the Employer/Insurer has controverted indemnity payments.

b. Payment of Medical in No-Liability Stipulations– The parties can agree that the Employer/Insurer is to pay current or outstanding medical expenses even if settlement is agreed upon on a no-liability basis. However, it should be noted that once the State Board approves the no-liability stipulation, it no longer retains jurisdiction in regard to any dispute that would arise between the parties as to the payment of future medical expenses. Therefore, the Board will not approve a no-liability settlement that leaves future medical open indefinitely.

Captions, copies and associating multiple files The caption on the first page of the stipulated settlement must include the

name, address and telephone number of each party to the agreement. The employee’s attorney must also provide his or her Federal Tax I.D. number. Rule 15(a)(2). Leave the top five inches blank above the caption for the approval stamp. Rule 15(a)(7).

If filing electronically, submit one copy of the stipulation and one copy of the supporting documents to the Board. Separate the stipulation from the supporting documents. The supporting documents should be filed as “stip supplemental.” Rule 15(a)(1). If filing electronically, please do not send duplicative documents in paper to the Board. The electronic filing is sufficient.

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If the stipulation covers multiple Board claim files, file the stipulation in one claim file with the other claim files “associated.” Please call the Settlement Division for information on how to associate files, if needed. Do not file a duplicate stipulation in each of several files separately, as each one will be processed separately, resulting in delay and possible confusion.

Bona fide dispute

Stipulated settlements must state with specificity the legal and/or factual matters about which the parties cannot agree. Issues such as length of disability, degree of disability, ability of employee to return to regular duty work, need for further medical expenses, liability, permanent partial disability, and dependency may be considered. Rule 15(b)(1).

Past and future medical expenses

Liability stipulations must state that all incurred medical expenses, which were reasonable and necessary, have been or will be paid by the employer/insurer. Rule 15(b)(2). You may choose to discuss the claimant’s medical treatment, but it is not mandatory to include the entire medical history of the claim or the total amount spent on past medical expenses.

The need for future medical treatment must be addressed. If future medical treatment will not be made available, a rationale for closing medical treatment must be provided.

Attorney fees & expenses

All fees must conform to O.C.G.A. §34-9-108 and Board Rule 108, in addition to Rule 15(e). In structured settlements, attorney fees are based on present value. The cost of the structure/annuity is required.

Expenses must be itemized, and this itemization must be provided to

the Board in the stipulated settlement or as a stip supplemental document. The Board will reject a stipulation which contains expenses that violate Georgia law, Board Rules, or Georgia State Bar Rules of Professional Conduct. For example, Rule 15(k) prohibits any party, or party’s attorney, from entering into a loan with a third party creditor which requires repayment from the proceeds of a workers’ compensation claim. Thus, the Board will reject any stipulation which lists repayment of such a loan as an expense.

No attorney fee can be calculated on money designated for medical expenses. If no money is designated for medical expenses in the stipulation, the Board may make confidential inquiry as to why, depending on the amount of the settlement, the medical condition of the claimant, and the totality of the circumstances.

Because the attorney fee cannot be taken on money designated for medical, the settlement of medical benefits alone is not subject to attorney fees. This may come up in claims where indemnity benefits are settled at one time, leaving medical open, and the parties later decide to settle medical benefits.


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Attorney Fee Liens All attorney fee liens on record at the Board must be resolved before the

stipulated settlement will be approved. Liens based on prior representation are to be negotiated to agreement prior to the stipulated settlement being submitted to the Board for approval, or, in the alternative, the amount of the lien (including all expenses) should be held in escrow pending resolution. A mediation may, of course, be requested at the same time.

Child Support Liens

All child support liens must be resolved before the stipulated settlement will be approved, including out-of-state liens or liens that have not been filed with the Board. The parties must provide documentation, from the Support Enforcement Agency or Assistant District Attorney in charge of Support Enforcement, indicating that the lien is withdrawn, satisfied in full, or reduced by a specified amount. If the lien is being satisfied out of the settlement proceeds, make certain it is clear in the Stipulation (or in the Throw Away Sheet for a No-Liability Stipulated Settlement) which party is going to write the check to satisfy the child support lien. The child support lien check should not be payable to the claimant before going to the appropriate agency. A promise by the claimant that he or she will pay the child support lien out of the settlement proceeds after receiving said proceeds is not sufficient. If no child support liens exist, the stipulation must state that there are no outstanding child support liens that would prohibit full disbursement of the settlement funds. Rule 15(l).

General releases and other jurisdictions

The stipulated settlement must refer to a specific incident or alleged incident. The Board will not approve a stipulated settlement containing a general release from any and all claims, or purporting to settle matters other than workers’ compensation benefits. Please do not include language in a stipulated settlement waiving “any and all future claims, including but not limited to . . .” because we cannot approve this language. Rule 15(g).

Just as the Board cannot approve settlements of matters outside of workers’ compensation, the Board cannot approve a settlement of matters outside the state of Georgia. If the parties wish to settle a Georgia claim at the same time as an out-of-state claim, and wish the Board to be aware of the out-of-state settlement (for example, if knowing about the out-of-state settlement would help the Board understand why a particular claim is settling for a particular amount of money), a statement explaining that an out-of-state settlement is occurring may be filed as a Stip Supplemental.

Social Security disability benefits

Federal law contains an offset for workers’ compensation income benefits against Social Security disability benefits. Briefly, the offset rule provides that no combination of workers’ compensation and Social Security disability benefits can exceed 80% of pre-injury earnings. Therefore, it is often useful to prorate the

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portion of settlement proceeds that represent income benefits over the employee’s remaining life expectancy. Most stipulated settlements should include this “Hartman” language if the settlement amount is $5,000 or more (for No-Liability Stipulations, this language would be a Stip Supplemental document). Rule 15(m). Please refer to our other information on “Hartman” language for more details.

Structured Settlements

If a settlement includes a structure/annuity that is to be paid by a party other than the employer or the insurer, then the stipulated settlement must contain a provision that the employer and insurer will be liable for the agreement in the event of default or failure of that third party to pay. Additionally, the cost of the structure/annuity must be provided.

Medicare Set Asides

If a settlement includes an MSA, you must provide the actual or projected cost of the MSA. Rule 15(d). Make certain the Stipulation is clear as to which party will fund the MSA, when the MSA will be funded, and whether the MSA is in addition to or included in the consideration mentioned elsewhere in the stipulation.

If the MSA has been approved by CMS, best practice is to state so in the stipulation.

If the parties are waiting on approval by CMS before funding the MSA, but wish to file the stipulation with the Board and close medical before hearing back from CMS, the stipulation must specify how medical treatment will be paid in the interim. This may be done by paying all or a portion of the MSA seed money to the claimant at the time of stip approval. The stipulation should clarify what will happen in the event CMS issues a “counter higher” or “counter lower.”

The Board may approve a stipulation that closes indemnity and leaves medical open pending CMS approval of an MSA. In that circumstance, the parties may specify the exact terms of open medical, such as agreeing on an authorized treating physician. Because medical remains open, the Board retains jurisdiction to resolve any disputes over medical treatment. The stipulation should provide that the parties will petition the Board for a change of physician in the event that a specifically named physician is unable to render services or if the parties cannot agree on a change of physician. Rule 15(b)(2).

Other Parties at Interest (WC-206/244)

Group insurance companies, health care providers or disability benefits providers may give notice to the Board that they should be a party at interest pursuant to O.C.G.A. §34-9-206 or O.C.G.A. §34-9-244, Rule 206 and 244, and Form WC-206 or WC-244.

Settlements in compensable claims will not be approved unless all WC-206/WC-244 party at interest issues are resolved. Rule 15(n). These issues should be resolved prior to filing a stipulation. Documentation of resolution may be filed as a Stip Supplemental document, if applicable.


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Attorney Fee Liens All attorney fee liens on record at the Board must be resolved before the

stipulated settlement will be approved. Liens based on prior representation are to be negotiated to agreement prior to the stipulated settlement being submitted to the Board for approval, or, in the alternative, the amount of the lien (including all expenses) should be held in escrow pending resolution. A mediation may, of course, be requested at the same time.

Child Support Liens

All child support liens must be resolved before the stipulated settlement will be approved, including out-of-state liens or liens that have not been filed with the Board. The parties must provide documentation, from the Support Enforcement Agency or Assistant District Attorney in charge of Support Enforcement, indicating that the lien is withdrawn, satisfied in full, or reduced by a specified amount. If the lien is being satisfied out of the settlement proceeds, make certain it is clear in the Stipulation (or in the Throw Away Sheet for a No-Liability Stipulated Settlement) which party is going to write the check to satisfy the child support lien. The child support lien check should not be payable to the claimant before going to the appropriate agency. A promise by the claimant that he or she will pay the child support lien out of the settlement proceeds after receiving said proceeds is not sufficient. If no child support liens exist, the stipulation must state that there are no outstanding child support liens that would prohibit full disbursement of the settlement funds. Rule 15(l).

General releases and other jurisdictions

The stipulated settlement must refer to a specific incident or alleged incident. The Board will not approve a stipulated settlement containing a general release from any and all claims, or purporting to settle matters other than workers’ compensation benefits. Please do not include language in a stipulated settlement waiving “any and all future claims, including but not limited to . . .” because we cannot approve this language. Rule 15(g).

Just as the Board cannot approve settlements of matters outside of workers’ compensation, the Board cannot approve a settlement of matters outside the state of Georgia. If the parties wish to settle a Georgia claim at the same time as an out-of-state claim, and wish the Board to be aware of the out-of-state settlement (for example, if knowing about the out-of-state settlement would help the Board understand why a particular claim is settling for a particular amount of money), a statement explaining that an out-of-state settlement is occurring may be filed as a Stip Supplemental.

Social Security disability benefits

Federal law contains an offset for workers’ compensation income benefits against Social Security disability benefits. Briefly, the offset rule provides that no combination of workers’ compensation and Social Security disability benefits can exceed 80% of pre-injury earnings. Therefore, it is often useful to prorate the

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portion of settlement proceeds that represent income benefits over the employee’s remaining life expectancy. Most stipulated settlements should include this “Hartman” language if the settlement amount is $5,000 or more (for No-Liability Stipulations, this language would be a Stip Supplemental document). Rule 15(m). Please refer to our other information on “Hartman” language for more details.

Structured Settlements

If a settlement includes a structure/annuity that is to be paid by a party other than the employer or the insurer, then the stipulated settlement must contain a provision that the employer and insurer will be liable for the agreement in the event of default or failure of that third party to pay. Additionally, the cost of the structure/annuity must be provided.

Medicare Set Asides

If a settlement includes an MSA, you must provide the actual or projected cost of the MSA. Rule 15(d). Make certain the Stipulation is clear as to which party will fund the MSA, when the MSA will be funded, and whether the MSA is in addition to or included in the consideration mentioned elsewhere in the stipulation.

If the MSA has been approved by CMS, best practice is to state so in the stipulation.

If the parties are waiting on approval by CMS before funding the MSA, but wish to file the stipulation with the Board and close medical before hearing back from CMS, the stipulation must specify how medical treatment will be paid in the interim. This may be done by paying all or a portion of the MSA seed money to the claimant at the time of stip approval. The stipulation should clarify what will happen in the event CMS issues a “counter higher” or “counter lower.”

The Board may approve a stipulation that closes indemnity and leaves medical open pending CMS approval of an MSA. In that circumstance, the parties may specify the exact terms of open medical, such as agreeing on an authorized treating physician. Because medical remains open, the Board retains jurisdiction to resolve any disputes over medical treatment. The stipulation should provide that the parties will petition the Board for a change of physician in the event that a specifically named physician is unable to render services or if the parties cannot agree on a change of physician. Rule 15(b)(2).

Other Parties at Interest (WC-206/244)

Group insurance companies, health care providers or disability benefits providers may give notice to the Board that they should be a party at interest pursuant to O.C.G.A. §34-9-206 or O.C.G.A. §34-9-244, Rule 206 and 244, and Form WC-206 or WC-244.

Settlements in compensable claims will not be approved unless all WC-206/WC-244 party at interest issues are resolved. Rule 15(n). These issues should be resolved prior to filing a stipulation. Documentation of resolution may be filed as a Stip Supplemental document, if applicable.


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In all No-Liability settlements, the parties must submit a statement specifying the party responsible for outstanding medical expenses. Rule 15(o). Best practice is to include this statement in the “throw-away sheet” filed as a Stip Supplemental at the same time as the No-Liability Stipulation. The party identified as responsible for outstanding medical expenses may be liable for any payments owed to Parties at Interest which have filed WC-206/244 forms, but the issue of that party’s liability is separate from the approval of the Stipulation. The Board may, in its discretion, approve a valid No-Liability Stipulation despite the existence of a WC-206/244 in the claim file. See O.C.G.A. §34-9-206(b).

Conservator/Guardianship Issues (34-9-226 and Rule 226)

If the claimant (or dependent child of a deceased employee) is a minor or mentally incompetent adult, conservator issues must be considered before settlement. Form WC-226(a) or (b) must be filed with the appropriate Administrative Law Judge, and an order on that application issued by the judge, before the parties file a Stipulated Settlement with the Board. See O.C.G.A. §34-9-226 and Rule 226.

If the natural parent is the guardian of a minor and the net settlement amount is under $15,000, no Board appointed conservator is necessary for settlement approval. If the net settlement amount is $100,000 or greater, however, the Board does not have jurisdiction to appoint a conservator; the conservator must be appointed by probate court or another court of competent jurisdiction.

Employer notification

The supporting documents, or the stipulated settlement itself, must contain certification that a copy of the agreement has been sent to the employer prior to any party having signed it. Rule 15(c).

Signatures

Verify that the stipulated settlement is signed by all parties before submitting the agreement to the Board. It is not acceptable for anyone other than the claimant to sign on behalf of the claimant, even “by express permission,” other than a duly appointed guardian or conservator for the claimant.

If the names of the signatories on the Stipulation do not match the Board’s file, make certain there is a clear explanation (for example, if two attorneys are co-counsel for one party, or an employer has changed names).

Rejected agreements or requests for additional documents

The Board may request additional information or documentation on any stipulated settlement or may send a rejection notice if the stipulated settlement does not comply with Board Rule 15. A rejection notice applies only to the stipulation in question and does not prevent the parties from filing a new stipulation in the future. The Board may make confidential informal inquiry regarding any settlement. Rule 15(h).

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Withdrawing consent to settle If one of the parties to a stipulated settlement wishes to withdraw consent

to settle prior to Board approval of the stipulation, they should contact the Settlement Division immediately. The Board will not approve a stipulation if we have notice of withdrawn consent prior to Board approval, even if the stipulation has been signed and filed. Stipulations are not binding until approved by the Board. Caldwell v. Perry, 179 Ga. App. 682, 347 S.E.2d 286 (1986).

Disbursements

Upon approval, the Stipulated Settlement becomes an Order/Award of the Board, therefore, all aspects of the agreement must be met. Checks must be disbursed/mailed in the specified manner, and payment made within the 20-day period specified in O.C.G.A. §34-9-221(f), or a 20 percent penalty will be added to the amount due.

Supporting Documents for Liability Stipulated Settlements The following documents/information must be submitted at the same time that the Liability Stipulated Settlement is submitted, but should not be attached to the Liability Stipulated Settlement. They should be filed as one or more Stip Supplemental Documents.

• Attorney fee contract, if not already in the claim file. • Most recent medical report, including the medical condition of the claimant

and surgical history, if any. The entire medical history should not be included.

• Itemization of attorney expenses, if the itemization is not included in the Stipulation.

• Documentation confirming resolution of any attorney fee liens, child support liens, WC-206/244 issues, etc.

• A copy of the MSA may be filed as a Stip Supplemental. Supporting Documents for No-Liability Stipulated Settlements The following documents/information must be submitted at the same time that the No-Liability Stipulated Settlement is submitted, but should not be attached to the Liability Stipulated Settlement. They should be filed as one or more Stip Supplemental Documents.

• For each date of injury, there should be either (a) a WC-1 (with section (c) or (d) completed), (2) a WC-3 controverting the entire claim filed within 81 days of the date of injury, or (3) a WC-4 showing no indemnity has been paid.

• Board Form WC-15, signed by claimant’s counsel, certifying that fees and expenses will not exceed those allowed by Board Rule 108.

• Memorandum or “throw-away” sheet to show the consideration paid to the employee and which party will be responsible for any incurred medical expenses. If attorney expenses are listed, they should be itemized, and if


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In all No-Liability settlements, the parties must submit a statement specifying the party responsible for outstanding medical expenses. Rule 15(o). Best practice is to include this statement in the “throw-away sheet” filed as a Stip Supplemental at the same time as the No-Liability Stipulation. The party identified as responsible for outstanding medical expenses may be liable for any payments owed to Parties at Interest which have filed WC-206/244 forms, but the issue of that party’s liability is separate from the approval of the Stipulation. The Board may, in its discretion, approve a valid No-Liability Stipulation despite the existence of a WC-206/244 in the claim file. See O.C.G.A. §34-9-206(b).

Conservator/Guardianship Issues (34-9-226 and Rule 226)

If the claimant (or dependent child of a deceased employee) is a minor or mentally incompetent adult, conservator issues must be considered before settlement. Form WC-226(a) or (b) must be filed with the appropriate Administrative Law Judge, and an order on that application issued by the judge, before the parties file a Stipulated Settlement with the Board. See O.C.G.A. §34-9-226 and Rule 226.

If the natural parent is the guardian of a minor and the net settlement amount is under $15,000, no Board appointed conservator is necessary for settlement approval. If the net settlement amount is $100,000 or greater, however, the Board does not have jurisdiction to appoint a conservator; the conservator must be appointed by probate court or another court of competent jurisdiction.

Employer notification

The supporting documents, or the stipulated settlement itself, must contain certification that a copy of the agreement has been sent to the employer prior to any party having signed it. Rule 15(c).

Signatures

Verify that the stipulated settlement is signed by all parties before submitting the agreement to the Board. It is not acceptable for anyone other than the claimant to sign on behalf of the claimant, even “by express permission,” other than a duly appointed guardian or conservator for the claimant.

If the names of the signatories on the Stipulation do not match the Board’s file, make certain there is a clear explanation (for example, if two attorneys are co-counsel for one party, or an employer has changed names).

Rejected agreements or requests for additional documents

The Board may request additional information or documentation on any stipulated settlement or may send a rejection notice if the stipulated settlement does not comply with Board Rule 15. A rejection notice applies only to the stipulation in question and does not prevent the parties from filing a new stipulation in the future. The Board may make confidential informal inquiry regarding any settlement. Rule 15(h).

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Withdrawing consent to settle If one of the parties to a stipulated settlement wishes to withdraw consent

to settle prior to Board approval of the stipulation, they should contact the Settlement Division immediately. The Board will not approve a stipulation if we have notice of withdrawn consent prior to Board approval, even if the stipulation has been signed and filed. Stipulations are not binding until approved by the Board. Caldwell v. Perry, 179 Ga. App. 682, 347 S.E.2d 286 (1986).

Disbursements

Upon approval, the Stipulated Settlement becomes an Order/Award of the Board, therefore, all aspects of the agreement must be met. Checks must be disbursed/mailed in the specified manner, and payment made within the 20-day period specified in O.C.G.A. §34-9-221(f), or a 20 percent penalty will be added to the amount due.

Supporting Documents for Liability Stipulated Settlements The following documents/information must be submitted at the same time that the Liability Stipulated Settlement is submitted, but should not be attached to the Liability Stipulated Settlement. They should be filed as one or more Stip Supplemental Documents.

• Attorney fee contract, if not already in the claim file. • Most recent medical report, including the medical condition of the claimant

and surgical history, if any. The entire medical history should not be included.

• Itemization of attorney expenses, if the itemization is not included in the Stipulation.

• Documentation confirming resolution of any attorney fee liens, child support liens, WC-206/244 issues, etc.

• A copy of the MSA may be filed as a Stip Supplemental. Supporting Documents for No-Liability Stipulated Settlements The following documents/information must be submitted at the same time that the No-Liability Stipulated Settlement is submitted, but should not be attached to the Liability Stipulated Settlement. They should be filed as one or more Stip Supplemental Documents.

• For each date of injury, there should be either (a) a WC-1 (with section (c) or (d) completed), (2) a WC-3 controverting the entire claim filed within 81 days of the date of injury, or (3) a WC-4 showing no indemnity has been paid.

• Board Form WC-15, signed by claimant’s counsel, certifying that fees and expenses will not exceed those allowed by Board Rule 108.

• Memorandum or “throw-away” sheet to show the consideration paid to the employee and which party will be responsible for any incurred medical expenses. If attorney expenses are listed, they should be itemized, and if


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the settlement is $5,000 or more, the Hartman language should be included with the memorandum.

• Documentation confirming resolution of child support or attorney fee liens, if applicable.

Social Security (a.k.a. “Hartman”) Language Because Federal law contains an “offset” for workers’ compensation income benefits against social security disability benefits, it is beneficial to the employee to prorate the portion of settlement proceeds that represent income benefits over his or her remaining life expectancy. The offset rule provides that no combination of workers’ compensation and social security disability benefits can exceed 80% of pre-injury earnings. While there is no specific wording required by the Social Security Administration for offset (Hartman) language, the following example is one that may be used: • Of the $90,000.00 settlement, $22,500 shall be paid as attorney’s fees to (insert

attorney name), as attorney for the employee/claimant. The $67,000.00 to be paid to the employee/claimant shall be calculated without commutation of interest, but shall represent the negotiated compromise agreement that the claimant’s life expectancy is 20.68 years forward from this date, pursuant to the Annuity Mortality Table for 1949 Ultimate, as established by O.C.G.A. §24-4-45, Appendix, Title 24, and that the settlement herein reached represents the payment of $62.77 per week to the claimant over the balance of the 1,075.36 week life expectancy of the claimant into the future.

Caveats • Only social security disability benefits are subject to offset. Retirement and social

security survivors’ benefits are not subject to offset because they are not based on disability. Therefore, you do not need to include Hartman language in a death case.

• Hartman language in No-Liability Stips: The Social Security Administration may

consider any amount paid in a settlement as income for offset purposes, even in a no-liability stipulation. Therefore, even though the Stip Supplemental filed concurrently with a no-liability stipulation is not sanctioned by the Board, the Hartman language should appear in the Stip Supplemental as part of an agreement between employee and employer. Munsinger v. Schweiker. 709 F.2d 1212 (8

th Cir.

1983). • Permanent Partial Disability (PPD) payments are considered income and as such are

not excluded from offset by Social Security; do not exclude any estimated PPD rating from a settlement when calculating the Hartman language. Davidson v. Sullivan. 942 F.2d 90 (1st Cir. 1991).

• Medical benefits to be paid as a part of the settlement are excluded from offset

calculation. 13

• Attorney fees and litigation costs are excluded from offset calculations. • Generally, use of prorated lifetime apportionment should be sufficient to lessen the

impact of the lump sum settlement on the employee’s entitlement to Social Security Disability Income Benefits. In complicated cases, or those with high dollar settlement values, the Board urges thoughtful planning to coordinate benefit entitlement.


12

the settlement is $5,000 or more, the Hartman language should be included with the memorandum.

• Documentation confirming resolution of child support or attorney fee liens, if applicable.

Social Security (a.k.a. “Hartman”) Language Because Federal law contains an “offset” for workers’ compensation income benefits against social security disability benefits, it is beneficial to the employee to prorate the portion of settlement proceeds that represent income benefits over his or her remaining life expectancy. The offset rule provides that no combination of workers’ compensation and social security disability benefits can exceed 80% of pre-injury earnings. While there is no specific wording required by the Social Security Administration for offset (Hartman) language, the following example is one that may be used: • Of the $90,000.00 settlement, $22,500 shall be paid as attorney’s fees to (insert

attorney name), as attorney for the employee/claimant. The $67,000.00 to be paid to the employee/claimant shall be calculated without commutation of interest, but shall represent the negotiated compromise agreement that the claimant’s life expectancy is 20.68 years forward from this date, pursuant to the Annuity Mortality Table for 1949 Ultimate, as established by O.C.G.A. §24-4-45, Appendix, Title 24, and that the settlement herein reached represents the payment of $62.77 per week to the claimant over the balance of the 1,075.36 week life expectancy of the claimant into the future.

Caveats • Only social security disability benefits are subject to offset. Retirement and social

security survivors’ benefits are not subject to offset because they are not based on disability. Therefore, you do not need to include Hartman language in a death case.

• Hartman language in No-Liability Stips: The Social Security Administration may

consider any amount paid in a settlement as income for offset purposes, even in a no-liability stipulation. Therefore, even though the Stip Supplemental filed concurrently with a no-liability stipulation is not sanctioned by the Board, the Hartman language should appear in the Stip Supplemental as part of an agreement between employee and employer. Munsinger v. Schweiker. 709 F.2d 1212 (8

th Cir.

1983). • Permanent Partial Disability (PPD) payments are considered income and as such are

not excluded from offset by Social Security; do not exclude any estimated PPD rating from a settlement when calculating the Hartman language. Davidson v. Sullivan. 942 F.2d 90 (1st Cir. 1991).

• Medical benefits to be paid as a part of the settlement are excluded from offset

calculation. 13

• Attorney fees and litigation costs are excluded from offset calculations. • Generally, use of prorated lifetime apportionment should be sufficient to lessen the

impact of the lump sum settlement on the employee’s entitlement to Social Security Disability Income Benefits. In complicated cases, or those with high dollar settlement values, the Board urges thoughtful planning to coordinate benefit entitlement.


14

Templates for Stipulated Settlement Agreements

STANDARD CAPTION

(First five inches left blank for State Board approval mark)

STATE BOARD OF WORKERS’ COMPENSATION 270 PEACHTREE STREET NW

ATLANTA, GEORGIA 30303-1299

Claim No.: (the State Board ICMS claim number) Date of Injury: ____ Name of Employee Address City, State, Zip Code Phone No. Employer Address City, State, Zip Code Phone No. Insurance/Servicing Agent Insurer Address City, State, Zip Code Phone No. Counsel for employee Address City, State, Zip Code Phone No. Federal Tax I.D. No. Counsel for employer/insurer Address City, State, Zip Code Phone No.

Stipulated Settlement and Agreement Suggested content by paragraph (liability stip):

15

1. The exact nature of employee’s injury, name of employer, date of injury. If an additional date of injury is being covered by the settlement, but does not have a Board claim file, list the date of injury in the body of the Stipulated Settlement. Do not list it in the caption.

2.

Total amount of indemnity benefits paid to the employee, and the total amount of medical expenses paid to date. This is optional.

3.

If the employer or insurer may be known by different names or titles, state whether this Stipulation applies to those alternative names or titles.

4.

Detail issues of the bone fide dispute between employee and employer/insurer. Provide employee and employer/insurer contentions.

5.

Specify issues to be settled by this Stipulation (usually, this means all issues and disputes). If any issues are not being settled by the Stipulation (such as subrogation, medical, or other issues), make certain this is clear in the document.

6.

Consideration paid as a compromise settlement between the parties.

7. Provide amount of attorney fees to be paid employee’s attorney. If expenses are to be paid, state the amount of expenses and provide an itemization for those expenses (this itemization may be filed separately as a “stip supplemental” or included in the stip).

8.

Include the Hartman social security language on all stipulated settlements over $5,000.00.

9. If any advances have been made to the claimant and will be deducted from the consideration to be paid, state so.

10.

State that all reasonable and necessary medical has or will be paid by the employer/insurer.

11. Assess the need for further medical treatment in the future. State whether the claimant or the employer/insurer will be responsible for further medical bills.


14

Templates for Stipulated Settlement Agreements

STANDARD CAPTION

(First five inches left blank for State Board approval mark)

STATE BOARD OF WORKERS’ COMPENSATION 270 PEACHTREE STREET NW

ATLANTA, GEORGIA 30303-1299

Claim No.: (the State Board ICMS claim number) Date of Injury: ____ Name of Employee Address City, State, Zip Code Phone No. Employer Address City, State, Zip Code Phone No. Insurance/Servicing Agent Insurer Address City, State, Zip Code Phone No. Counsel for employee Address City, State, Zip Code Phone No. Federal Tax I.D. No. Counsel for employer/insurer Address City, State, Zip Code Phone No.

Stipulated Settlement and Agreement Suggested content by paragraph (liability stip):

15

1. The exact nature of employee’s injury, name of employer, date of injury. If an additional date of injury is being covered by the settlement, but does not have a Board claim file, list the date of injury in the body of the Stipulated Settlement. Do not list it in the caption.

2.

Total amount of indemnity benefits paid to the employee, and the total amount of medical expenses paid to date. This is optional.

3.

If the employer or insurer may be known by different names or titles, state whether this Stipulation applies to those alternative names or titles.

4.

Detail issues of the bone fide dispute between employee and employer/insurer. Provide employee and employer/insurer contentions.

5.

Specify issues to be settled by this Stipulation (usually, this means all issues and disputes). If any issues are not being settled by the Stipulation (such as subrogation, medical, or other issues), make certain this is clear in the document.

6.

Consideration paid as a compromise settlement between the parties.

7. Provide amount of attorney fees to be paid employee’s attorney. If expenses are to be paid, state the amount of expenses and provide an itemization for those expenses (this itemization may be filed separately as a “stip supplemental” or included in the stip).

8.

Include the Hartman social security language on all stipulated settlements over $5,000.00.

9. If any advances have been made to the claimant and will be deducted from the consideration to be paid, state so.

10.

State that all reasonable and necessary medical has or will be paid by the employer/insurer.

11. Assess the need for further medical treatment in the future. State whether the claimant or the employer/insurer will be responsible for further medical bills.


16

12.

If a Medicare Set Aside (MSA) account is part of the settlement, state who will fund the MSA, the actual or projected cost of the MSA, and when the MSA will be funded.

13.

If the parties are waiting on an MSA approval decision from CMS but wish to settle indemnity now, state how medical will be paid in the interim. Usually, this means leaving medical open or paying a portion of the MSA seed money upon Board stip approval.

14.

In addition, if the parties are waiting on an MSA approval decision from CMS but wish to settle indemnity now, the Stipulation must state that the State Board retains jurisdiction of those medical issues covered by the MSA until such time as the medical portion of the claim is resolved.

15.

Information concerning participation in or need for vocational rehabilitation.

16. Detail resolution of child support and/or attorney fee liens, if applicable. If there are no child support liens, the Stipulation must state that there are no outstanding child support liens that would prohibit the full disbursement of the settlement funds.

17.

Certify that the employer received a copy of the settlement before any party signed it. The standard format for execution of stipulated settlements follows: Claimant________________________________ (Type/print employee’s name)

Allow 2” between claimant’s signature and remaining signatures.

Claimant’s Attorney________________________ (Type/print name)

Employer_________________________________ (Type/print name) Insurer___________________________________ (Type/print Company name)

By_______________________________________ (Type/print name of attorney for insurer) If employee is illiterate, or does not understand English, certification must be attached to indicate that the agreement has been read to the employee and that he or she understands its contents.

17

No-Liability Stipulated Settlement and Agreement

Caption (See Standard Caption page one)

Suggested content by paragraph (no-liability stip): 1. Exact nature of employee’s alleged injury, name of employer, and date of alleged injury. 2. Employee’s contentions as to rights to compensation. 3. Employer/insurer’s contentions as to why benefits should be denied. 4. Agreement as to non-compensability of claim and request for award denying liability. DO NOT specify the consideration to be paid in the No-Liability Stipulation. The standard format for execution of stipulated settlements follows: Claimant________________________________ (Type/print employee’s name)




By_______________________________________ (Type/print name of attorney for insurer) If employee is illiterate, or does not understand English, certification must be attached to indicate that the agreement has been read to the employee and that he or she understands its contents. In compliance with Board Rule 15(f) a Board Form WC-15 must be submitted with each no-liability stipulation if the claimant is represented by counsel.


16

12.

If a Medicare Set Aside (MSA) account is part of the settlement, state who will fund the MSA, the actual or projected cost of the MSA, and when the MSA will be funded.

13.

If the parties are waiting on an MSA approval decision from CMS but wish to settle indemnity now, state how medical will be paid in the interim. Usually, this means leaving medical open or paying a portion of the MSA seed money upon Board stip approval.

14.

In addition, if the parties are waiting on an MSA approval decision from CMS but wish to settle indemnity now, the Stipulation must state that the State Board retains jurisdiction of those medical issues covered by the MSA until such time as the medical portion of the claim is resolved.

15.

Information concerning participation in or need for vocational rehabilitation.

16. Detail resolution of child support and/or attorney fee liens, if applicable. If there are no child support liens, the Stipulation must state that there are no outstanding child support liens that would prohibit the full disbursement of the settlement funds.

17.

Certify that the employer received a copy of the settlement before any party signed it. The standard format for execution of stipulated settlements follows: Claimant________________________________ (Type/print employee’s name)




By_______________________________________ (Type/print name of attorney for insurer) If employee is illiterate, or does not understand English, certification must be attached to indicate that the agreement has been read to the employee and that he or she understands its contents.

17

No-Liability Stipulated Settlement and Agreement

Caption (See Standard Caption page one)

Suggested content by paragraph (no-liability stip): 1. Exact nature of employee’s alleged injury, name of employer, and date of alleged injury. 2. Employee’s contentions as to rights to compensation. 3. Employer/insurer’s contentions as to why benefits should be denied. 4. Agreement as to non-compensability of claim and request for award denying liability. DO NOT specify the consideration to be paid in the No-Liability Stipulation. The standard format for execution of stipulated settlements follows: Claimant________________________________ (Type/print employee’s name)




By_______________________________________ (Type/print name of attorney for insurer) If employee is illiterate, or does not understand English, certification must be attached to indicate that the agreement has been read to the employee and that he or she understands its contents. In compliance with Board Rule 15(f) a Board Form WC-15 must be submitted with each no-liability stipulation if the claimant is represented by counsel.


12:10 REPRESENTING THE PARTIES TO A CATASTROPHIC CASE Hon. Kimberly S. Boehm, Administrative Law Judge, State Board of Workers’ Compensation, Atlanta Justin K. Lowery, Morgan & Morgan, Atlanta Michael T. Hammond, Moore Clarke DuVall & Rodgers PC, Atlanta


Representing the Parties to a Catastrophic Case

Justin K. Lowery Morgan & Morgan, P.A.

Atlanta, Georgia [email protected]

404-496-7299

I. Catastrophic Injuries II. Burden of Proof/Vocational Experts

III. Litigation Considerations IV. Settlement Considerations V. Conclusion


I. Catastrophic Injuries

There are generally two types of workers’ compensation claims: non-catastrophic and

catastrophic. The first is by far the most common. For accidents occurring after June 30, 2013,

the longest a claim can run is 400 weeks from the date of the injury; this is for both medical and

income benefits.1 Catastrophic claims involve lifetime income, lifetime medical benefits, and

vocational rehabilitation services.

Catastrophic injuries are defined by statute in O.C.G.A. § 34-9-200.1(g)(1-6). These

include:

(1) Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk; (2) Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage; (3) Severe brain or closed head injury as evidenced by: (A) Severe sensory or motor disturbances; (B) Severe communication disturbances; (C) Severe complex integrated disturbances of cerebral function; (D) Severe disturbances of consciousness; (E) Severe episodic neurological disorders; or (F) Other conditions at least as severe in nature as any condition provided in subparagraphs (A) through (E) of this paragraph; (4) Second or third degree burns over 25 percent of the body as a whole or third degree burns to 5 percent or more of the face or hands; (5) Total or industrial blindness; or (6) (A) Any other injury of a nature and severity that prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified.

1 Some older dates of injury allow for lifetime medical. Additionally, it is an oversimplification to say that claims cannot run more than 400 weeks because technically income benefits could be due through the entire 400 weeks followed by a possible payment for permanent partial disability, but that sort of technical improbability belongs buried in a footnote.



Justin K. Lowery Morgan & Morgan, P.A.

Atlanta, Georgia [email protected]

404-496-7299

I. Catastrophic Injuries II. Burden of Proof/Vocational Experts

III. Litigation Considerations IV. Settlement Considerations V. Conclusion


I. Catastrophic Injuries

There are generally two types of workers’ compensation claims: non-catastrophic and

catastrophic. The first is by far the most common. For accidents occurring after June 30, 2013,

the longest a claim can run is 400 weeks from the date of the injury; this is for both medical and

income benefits.1 Catastrophic claims involve lifetime income, lifetime medical benefits, and

vocational rehabilitation services.

Catastrophic injuries are defined by statute in O.C.G.A. § 34-9-200.1(g)(1-6). These

include:

(1) Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk; (2) Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage; (3) Severe brain or closed head injury as evidenced by: (A) Severe sensory or motor disturbances; (B) Severe communication disturbances; (C) Severe complex integrated disturbances of cerebral function; (D) Severe disturbances of consciousness; (E) Severe episodic neurological disorders; or (F) Other conditions at least as severe in nature as any condition provided in subparagraphs (A) through (E) of this paragraph; (4) Second or third degree burns over 25 percent of the body as a whole or third degree burns to 5 percent or more of the face or hands; (5) Total or industrial blindness; or (6) (A) Any other injury of a nature and severity that prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified.

1 Some older dates of injury allow for lifetime medical. Additionally, it is an oversimplification to say that claims cannot run more than 400 weeks because technically income benefits could be due through the entire 400 weeks followed by a possible payment for permanent partial disability, but that sort of technical improbability belongs buried in a footnote.


While there are borderline cases for injuries that fall into categories (1-5), the

majority of those injuries are fairly clear in terms of whether they meet the criteria. It is

the injuries that fall into the (g)(6) category that are the most disputed.

II. Burden of Proof/Vocational Experts

Given that many of the (g)(1-5) injuries are catastrophic per se, most of the litigation

concerns injuries that fall into (g)(6). The claimant has the burden of proof even in an accepted

claim to establish that it is catastrophic.2 Parsing the language of (g)(6), the elements that must

be proven are:

Injury

That prevents the employee from performing his or her prior work

That prevents the employee from performing any work

Available in substantial numbers

In the national economy

For which he or she is otherwise qualified

The first and most obvious element is an injury (broadly defined in O.C.G.A. § 34-9-1 as

“injury by accident arising out of and in the course of the employment”). There may be a

scenario where the alleged injury is denied by the employer/insurer while the inability to work is

not – e.g., respiratory conditions and cumulative trauma injuries. If the alleged injury is not

deemed compensable, disability is irrelevant.

Assuming an accepted injury, it must be established that the employee is unable to

perform her prior work. Given the severity of the injuries typically involved in these cases, this

element is usually subsumed by the “any work” element; however, there may be a case where an

2 Reid v. Ga. Bldg. Auth., 283 Ga. App. 413, 416, 641 S.E.2d 642, 646 (2007)

employee was injured at a job that requires very little physical activity and is very flexible in

terms of when the work is to be performed. An injured worker with significant restrictions may

still be able to perform this type of job although it is not available in substantial numbers in the

national economy. Arguably, this would not be deemed a catastrophic injury because that

employee could continue working her job even though there are no other jobs she would be able

to perform.

Once it is established that an employee has sustained an injury that prevents her from

returning to her prior work, the claimant must then show that there is no work available3 in

substantial numbers in the national economy for which she is otherwise qualified. Typically, this

evidence comes in the form of the opinion of a vocational expert4. As laid out in the statute, the

requirement is not that the claimant be unable to return to work that she has previously

performed; rather, it is that she is unable to return to any work so long as it is available in

substantial numbers nationally and the employee is otherwise qualified for it. Thus, if there is

suddenly a shortage of attorneys in the national economy, but the claimant has not passed a bar,

she is not otherwise qualified for that employment and those jobs are eliminated from

consideration.

Although the work must be a type the claimant is otherwise qualified for, it does not have

to be available locally. Therefore, it can be argued that if jobs are available in large enough

amounts in the West, Midwest, and Northeast, a rural South Georgia claimant has not suffered a

catastrophic injury because work she is otherwise qualified for is available in substantial

numbers in the national economy regardless of the fact that it is not realistically available to her.

3 The Court of Appeals has held that even though the statute references the “availability” of work, all that needs to be shown is that suitable work exists. Davis v. Carter Mechanical Inc., 272 Ga. App. 773, 777 (2005). 4 While not an explicit requirement, several State Board decisions have indicated that having a vocational expert testify is essentially a necessity.


While there are borderline cases for injuries that fall into categories (1-5), the

majority of those injuries are fairly clear in terms of whether they meet the criteria. It is

the injuries that fall into the (g)(6) category that are the most disputed.

II. Burden of Proof/Vocational Experts

Given that many of the (g)(1-5) injuries are catastrophic per se, most of the litigation

concerns injuries that fall into (g)(6). The claimant has the burden of proof even in an accepted

claim to establish that it is catastrophic.2 Parsing the language of (g)(6), the elements that must

be proven are:

Injury

That prevents the employee from performing his or her prior work

That prevents the employee from performing any work

Available in substantial numbers

In the national economy

For which he or she is otherwise qualified

The first and most obvious element is an injury (broadly defined in O.C.G.A. § 34-9-1 as

“injury by accident arising out of and in the course of the employment”). There may be a

scenario where the alleged injury is denied by the employer/insurer while the inability to work is

not – e.g., respiratory conditions and cumulative trauma injuries. If the alleged injury is not

deemed compensable, disability is irrelevant.

Assuming an accepted injury, it must be established that the employee is unable to

perform her prior work. Given the severity of the injuries typically involved in these cases, this

element is usually subsumed by the “any work” element; however, there may be a case where an

2 Reid v. Ga. Bldg. Auth., 283 Ga. App. 413, 416, 641 S.E.2d 642, 646 (2007)

employee was injured at a job that requires very little physical activity and is very flexible in

terms of when the work is to be performed. An injured worker with significant restrictions may

still be able to perform this type of job although it is not available in substantial numbers in the

national economy. Arguably, this would not be deemed a catastrophic injury because that

employee could continue working her job even though there are no other jobs she would be able

to perform.

Once it is established that an employee has sustained an injury that prevents her from

returning to her prior work, the claimant must then show that there is no work available3 in

substantial numbers in the national economy for which she is otherwise qualified. Typically, this

evidence comes in the form of the opinion of a vocational expert4. As laid out in the statute, the

requirement is not that the claimant be unable to return to work that she has previously

performed; rather, it is that she is unable to return to any work so long as it is available in

substantial numbers nationally and the employee is otherwise qualified for it. Thus, if there is

suddenly a shortage of attorneys in the national economy, but the claimant has not passed a bar,

she is not otherwise qualified for that employment and those jobs are eliminated from

consideration.

Although the work must be a type the claimant is otherwise qualified for, it does not have

to be available locally. Therefore, it can be argued that if jobs are available in large enough

amounts in the West, Midwest, and Northeast, a rural South Georgia claimant has not suffered a

catastrophic injury because work she is otherwise qualified for is available in substantial

numbers in the national economy regardless of the fact that it is not realistically available to her.

3 The Court of Appeals has held that even though the statute references the “availability” of work, all that needs to be shown is that suitable work exists. Davis v. Carter Mechanical Inc., 272 Ga. App. 773, 777 (2005). 4 While not an explicit requirement, several State Board decisions have indicated that having a vocational expert testify is essentially a necessity.


Conversely, it may be argued that for work to be available in substantial numbers in the national

economy, it must also be available in substantial numbers locally, but this is likely to be a less

successful argument since it seems to go against the plain meaning.

Kissiah’s treatise on Georgia workers’ compensation indicates that “[t]he Social Security

Act defines ‘work which exists in the national economy’ as ‘work which exists in significant

numbers either in the region where such individual lives or in several regions of the country.’”

Rather than argue that “national” means “local,” it may be more prudent to focus on the modifier

“substantial.” In terms of job availability, this seems to be the most effective way to argue one

way or the other. There is no bright line rule for what constitutes a substantial amount. Other

than establishing what type of work the claimant is physically/mentally capable of, establishing

whether those jobs exist in substantial numbers may be the most important testimony of a

vocational expert.

III. Litigation Considerations

The various litigation considerations will be dependent on several factors, but primarily

will revolve around which category the application for catastrophic designation is under. For

claims under (g)(1-5), the likely issues will revolve around medical opinions. For example, burn

cases will revolve around what percentage of the body has been burned and what type of burns

have been sustained; amputation cases will revolve around how much of a hand or a foot must be

amputated to effectuate the loss of use of that body part; and brain injury cases will revolve

around the cognitive function of the injured worker. These issues will need significant support in

terms of medical opinions.

Although there may be strong evidence that a claim should be designated catastrophic on

the basis of falling into (g)(1-5), it is normally prudent to argue in the alternative that the case

would fit into (g)(6) as well. Thus, in most cases, a claimant will need to present both significant

and detailed medical evidence along with the opinion of a vocational expert.

The timing of these cases can be a challenge. Given the permanency of these injuries and

the ongoing medical care, it is important to either get opinions or confirm opinions near the

hearing date. If the authorized treating physician has the claimant on significant restrictions, but

has not seen her in nine months, then a medical opinion from a defense IME indicating that the

claimant has improved may carry more weight than it would have if the claimant had been seen

by the authorized treating physician and she confirmed that the restrictions were still in place.

Similarly, gaps in treatment, gaps in between competing functional capacity evaluations,

and new medical opinions following a vocational expert’s report can muddy the waters in terms

of who has the most up to date and/or accurate records.

Further, pursuant to (g)(6)(A), if the doctor has released the claimant to work with

restrictions, there is a rebuttable presumption for 130 weeks following the injury that the injury is

not catastrophic. This is important to bear in mind when preparing the case. If during that two

and a half year period the claimant’s attorney secures an opinion from the authorized treating

physician in regard to restrictions and then an opinion from a vocational expert in the first year,

then waits to try the case, a year and a half will pass before the case is tried – leaving the

evidence stale and subject to attack on a ground of improvements over time.

Further complicating the time frame is the possibility of the employer/insurer filing a

WC-104. This filing allows the employer/insurer to reduce the weekly benefits approximately

one year from the filing down to the max TPD rate. For a claimant with an average weekly wage

of $1,150.00, this would leave the claimant to receive only a third of her normal paycheck as


Conversely, it may be argued that for work to be available in substantial numbers in the national

economy, it must also be available in substantial numbers locally, but this is likely to be a less

successful argument since it seems to go against the plain meaning.

Kissiah’s treatise on Georgia workers’ compensation indicates that “[t]he Social Security

Act defines ‘work which exists in the national economy’ as ‘work which exists in significant

numbers either in the region where such individual lives or in several regions of the country.’”

Rather than argue that “national” means “local,” it may be more prudent to focus on the modifier

“substantial.” In terms of job availability, this seems to be the most effective way to argue one

way or the other. There is no bright line rule for what constitutes a substantial amount. Other

than establishing what type of work the claimant is physically/mentally capable of, establishing

whether those jobs exist in substantial numbers may be the most important testimony of a

vocational expert.

III. Litigation Considerations

The various litigation considerations will be dependent on several factors, but primarily

will revolve around which category the application for catastrophic designation is under. For

claims under (g)(1-5), the likely issues will revolve around medical opinions. For example, burn

cases will revolve around what percentage of the body has been burned and what type of burns

have been sustained; amputation cases will revolve around how much of a hand or a foot must be

amputated to effectuate the loss of use of that body part; and brain injury cases will revolve

around the cognitive function of the injured worker. These issues will need significant support in

terms of medical opinions.

Although there may be strong evidence that a claim should be designated catastrophic on

the basis of falling into (g)(1-5), it is normally prudent to argue in the alternative that the case

would fit into (g)(6) as well. Thus, in most cases, a claimant will need to present both significant

and detailed medical evidence along with the opinion of a vocational expert.

The timing of these cases can be a challenge. Given the permanency of these injuries and

the ongoing medical care, it is important to either get opinions or confirm opinions near the

hearing date. If the authorized treating physician has the claimant on significant restrictions, but

has not seen her in nine months, then a medical opinion from a defense IME indicating that the

claimant has improved may carry more weight than it would have if the claimant had been seen

by the authorized treating physician and she confirmed that the restrictions were still in place.

Similarly, gaps in treatment, gaps in between competing functional capacity evaluations,

and new medical opinions following a vocational expert’s report can muddy the waters in terms

of who has the most up to date and/or accurate records.

Further, pursuant to (g)(6)(A), if the doctor has released the claimant to work with

restrictions, there is a rebuttable presumption for 130 weeks following the injury that the injury is

not catastrophic. This is important to bear in mind when preparing the case. If during that two

and a half year period the claimant’s attorney secures an opinion from the authorized treating

physician in regard to restrictions and then an opinion from a vocational expert in the first year,

then waits to try the case, a year and a half will pass before the case is tried – leaving the

evidence stale and subject to attack on a ground of improvements over time.

Further complicating the time frame is the possibility of the employer/insurer filing a

WC-104. This filing allows the employer/insurer to reduce the weekly benefits approximately

one year from the filing down to the max TPD rate. For a claimant with an average weekly wage

of $1,150.00, this would leave the claimant to receive only a third of her normal paycheck as


soon as a year after her injury. That claimant would face at least another year and a half on that

wage just to get to court if the decision to wait on the 130 weeks was made.

IV. Settlement Considerations

While these cases can result in some of the largest settlements, they also come with the

most issues and the most hurdles. In most catastrophic cases, the biggest issue will be future

medical treatment – both in terms of exposure and making sure your client is able to adequately

provide for her future care. Generally speaking, there are two types of settlements in terms of

medical treatment: settlements requiring a Medicare Set Aside (MSA) and settlements that do

not require an MSA. Again, generally, MSAs are required in settlements that involve a claimant

who is or who has a reasonable expectation of becoming a Medicare beneficiary. Someone who

has applied for Social Security Disability; has applied, been denied, and is appealing; or who is

62 ½ are typically considered as someone who has a reasonable expectation of becoming a

Medicare beneficiary. If your claimant falls into one of the above categories, an MSA will

probably be necessary prior to settling medical. Occasionally, the cost of future medical

treatment included in the MSA will be so cost prohibitive that the employer/insurer will be

unable or unwilling to fully settle the claim. In these situations, it is possible to settle income

only and leave medical open, but it is critical that the settlement language is clear about what

particularly is being settled so that housing and transportation issues are not inadvertently settled

as well.

If the claimant does not fall into one of those categories, it is possible to settle without an

MSA, but you may want to obtain one to be safe. Remember, fees cannot be taken on medical,

thus it is unlikely that the State Board would approve an attorney fee that considered a portion of

the MSA. While an MSA may initially seem to mean more money for the claimant, it also limits

how that money may be used. For instance, in the case of a leg amputation, if an MSA

contemplates the costs of a prosthetic for the rest of the claimant’s life, but the claimant rarely

uses the prosthetic and prefers to use a wheelchair, the majority of the claimant’s settlement

funds will sit in an account unused or will be used improperly. It is also important to consider

non-Medicare covered costs such as housing and transportation and account for those costs in

your negotiations. Typically a life care planner can help predict the treatment and costs for both

Medicare covered and non-Medicare covered expenses.

Settling the income portion of a catastrophic claim is also challenging. It is common

practice to calculate the income exposure based on life expectancy pursuant to the CDC life

tables and then reduce to present value. Depending on the amount of time left in the claim, this

can reduce the income exposure 40-50%, and this is just the starting point of the negotiations.

This is difficult to accept for many claimants. As a practical point, it is useful to help clients in

this situation understand that the workers’ compensation check they receive each week will

never increase, but almost all of their expenses will. Having the money in a lump sum usually

affords an injured worker significant advantages in terms of financial planning.

These advantages can be increased through the use of annuities. In cases that do not

require an MSA, annuities are also helpful to protect funds from being depleted and leaving the

claimant without means for medical treatment. It is particularly important for a claimant’s

attorney to think outside the box in terms of structuring an annuity that satisfies the claimant’s

immediate needs while adequately protecting her long term interests.

An additional financial advantage to a settlement is that it allows the claimant to

maximize her recovery from multiple sources. There is a strong possibility that if your client has

a catastrophic injury, she will also be eligible for Social Security Disability benefits. In Georgia,


soon as a year after her injury. That claimant would face at least another year and a half on that

wage just to get to court if the decision to wait on the 130 weeks was made.

IV. Settlement Considerations

While these cases can result in some of the largest settlements, they also come with the

most issues and the most hurdles. In most catastrophic cases, the biggest issue will be future

medical treatment – both in terms of exposure and making sure your client is able to adequately

provide for her future care. Generally speaking, there are two types of settlements in terms of

medical treatment: settlements requiring a Medicare Set Aside (MSA) and settlements that do

not require an MSA. Again, generally, MSAs are required in settlements that involve a claimant

who is or who has a reasonable expectation of becoming a Medicare beneficiary. Someone who

has applied for Social Security Disability; has applied, been denied, and is appealing; or who is

62 ½ are typically considered as someone who has a reasonable expectation of becoming a

Medicare beneficiary. If your claimant falls into one of the above categories, an MSA will

probably be necessary prior to settling medical. Occasionally, the cost of future medical

treatment included in the MSA will be so cost prohibitive that the employer/insurer will be

unable or unwilling to fully settle the claim. In these situations, it is possible to settle income

only and leave medical open, but it is critical that the settlement language is clear about what

particularly is being settled so that housing and transportation issues are not inadvertently settled

as well.

If the claimant does not fall into one of those categories, it is possible to settle without an

MSA, but you may want to obtain one to be safe. Remember, fees cannot be taken on medical,

thus it is unlikely that the State Board would approve an attorney fee that considered a portion of

the MSA. While an MSA may initially seem to mean more money for the claimant, it also limits

how that money may be used. For instance, in the case of a leg amputation, if an MSA

contemplates the costs of a prosthetic for the rest of the claimant’s life, but the claimant rarely

uses the prosthetic and prefers to use a wheelchair, the majority of the claimant’s settlement

funds will sit in an account unused or will be used improperly. It is also important to consider

non-Medicare covered costs such as housing and transportation and account for those costs in

your negotiations. Typically a life care planner can help predict the treatment and costs for both

Medicare covered and non-Medicare covered expenses.

Settling the income portion of a catastrophic claim is also challenging. It is common

practice to calculate the income exposure based on life expectancy pursuant to the CDC life

tables and then reduce to present value. Depending on the amount of time left in the claim, this

can reduce the income exposure 40-50%, and this is just the starting point of the negotiations.

This is difficult to accept for many claimants. As a practical point, it is useful to help clients in

this situation understand that the workers’ compensation check they receive each week will

never increase, but almost all of their expenses will. Having the money in a lump sum usually

affords an injured worker significant advantages in terms of financial planning.

These advantages can be increased through the use of annuities. In cases that do not

require an MSA, annuities are also helpful to protect funds from being depleted and leaving the

claimant without means for medical treatment. It is particularly important for a claimant’s

attorney to think outside the box in terms of structuring an annuity that satisfies the claimant’s

immediate needs while adequately protecting her long term interests.

An additional financial advantage to a settlement is that it allows the claimant to

maximize her recovery from multiple sources. There is a strong possibility that if your client has

a catastrophic injury, she will also be eligible for Social Security Disability benefits. In Georgia,


Social Security Disability benefits are offset by workers’ compensation payments, so if a client

should receive $2,000.00 per month from Social Security Disability and $1,800.00 from

workers’ compensation, that client would receive the full amount form workers’ compensation

and $200.00 from Social Security. However, when that claim settles, the claimant’s portion of

the settlement is prorated over the rest of her life creating a much lower monthly workers’

compensation payment for Social Security to offset.

For example, the claimant in the above scenario, assuming a 30 year life expectancy and

a settlement that leaves the claimant with $200,000.00 after fees and expenses, would have a new

monthly offset amount of $555.58. This means that Social Security would increase its monthly

payments from $200.00 per month to $1,444.00. This results in a minor decrease in monthly

income in exchange for a large lump sum in the present.

V. Conclusion

These claims typically involve a significant commitment in terms of the attorney’s time

and resources. Further, because of the severity of the injuries, many claimants with catastrophic

injuries need more attention from their attorney. Given the complexities of these specific types

of cases and the statutory nature of workers’ compensation itself, it may be advisable for a

general practitioner to consider associating counsel in these types of claims.

Representing Parties to a Catastrophic Case

Michael T. Hammond

Moore Clarke, DuVall & Rodgers

Atlanta, Georgia

[email protected]

770-563-9339

I. Litigation Considerations for Claims Pursuant to O.C.G.A. § 34-9-200.1(g)(6)(A)

II. Challenging a Prior Catastrophic Designation

III. Benefits of Accepting a Claim as Catastrophic

IV. Statute of Limitations


Social Security Disability benefits are offset by workers’ compensation payments, so if a client

should receive $2,000.00 per month from Social Security Disability and $1,800.00 from

workers’ compensation, that client would receive the full amount form workers’ compensation

and $200.00 from Social Security. However, when that claim settles, the claimant’s portion of

the settlement is prorated over the rest of her life creating a much lower monthly workers’

compensation payment for Social Security to offset.

For example, the claimant in the above scenario, assuming a 30 year life expectancy and

a settlement that leaves the claimant with $200,000.00 after fees and expenses, would have a new

monthly offset amount of $555.58. This means that Social Security would increase its monthly

payments from $200.00 per month to $1,444.00. This results in a minor decrease in monthly

income in exchange for a large lump sum in the present.

V. Conclusion

These claims typically involve a significant commitment in terms of the attorney’s time

and resources. Further, because of the severity of the injuries, many claimants with catastrophic

injuries need more attention from their attorney. Given the complexities of these specific types

of cases and the statutory nature of workers’ compensation itself, it may be advisable for a

general practitioner to consider associating counsel in these types of claims.

Representing Parties to a Catastrophic Case

Michael T. Hammond

Moore Clarke, DuVall & Rodgers

Atlanta, Georgia

[email protected]

770-563-9339







Pursuant to O.C.G.A. § 34-9-200.1(g)(6)(A), often referred to as the “catch all

provision”, a claimant needs to prove that he or she is unable to perform his or her previous

job and any work available in substantial numbers within the national economy. The

claimant bears the burden of proving that his or her claim qualifies for catastrophic

designation and must present competent evidence to support his or her claim. See, Reid v.

Georgia Building Authority, 283 Ga. App. 413 (2007). The State Board must make a

determination as to whether the Claimant has shown by a preponderance of the evidence

that he or she is unable perform his or her prior work and any work available in substantial

numbers within the national economy for which he or she is otherwise qualified.

Typically, counsel for the claimant obtains a vocational expert to provide an opinion

as to whether the injured worker’s restrictions prevent him or her from returning to work.

Likewise, the attorney for the employer/insurer typically retains their own expert to provide

a competing opinion. The strength of the opinion of the vocational expert is one of the most

important factors in whether a claim receives catastrophic designation.

In addition to the vocational report, counsel for the claimant also often provides a

SSDI award to support his or her claim. O.C.G.A. § 34-9-200.1(g)(6)(a) provides that “a

decision granting or denying disability income benefits under Title 2 or supplemental

security income benefits under Title 6 of the Social Security Act shall be admissible in

evidence and the Board shall give the evidence the consideration and deference due under

the circumstances regarding the issue of whether the injury is a catastrophic injury;

provided, however, that no presumption shall be created by any decision granting or denying

disability income benefits under Title 2 or supplemental security income benefits under Title

6 of the Social Security Act.” A reading of this section shows that receipt of Social Security

Disability benefits, at most, creates a rebuttable presumption that the claim qualifies for

catastrophic designation. It is important that the attorney for the injured worker provide

not only the Social Security decision granting benefits but also the portion of the decision

outlining the rationale for which benefits were awarded. Without any rationale as to why

the claimant received benefits, the award has limited value. Often, claimants have health

conditions, many of which are unrelated to the work injury. As such, it is important to look

at the award carefully to determine whether the work injury was the primary factor, or a

factor at all, in the Social Security Administration’s decision to award benefits.

Another point of emphasis in litigating a catastrophic claim is the claimant’s work

history. The more skills and education the claimant has, the less likely the claimant is to

qualify for catastrophic designation. As such, it is important to obtain accurate information

as to the Claimant’s work history and education level.

Often, employers/insurers rely on Functional Capacity Evaluations (“FCEs”) to obtain

an objective analysis regarding the claimant’s ability to perform physical tasks. These

reports are usually provided to both the authorized treating physician and any vocational

rehab expert in an effort to determine an accurate work status. In a case where there are

multiple physicians that have provided opinions as to the claimant’s ability to work, FCE’s

can often provide a more objective analysis.


If the State Board finds that a claimant has shown by a preponderance of the

evidence that his or her claim qualifies for catastrophic designation, this does not prevent

an employer/insurer from subsequently arguing that the claim no longer qualifies for

catastrophic designation. O.C.G.A. § 34-9-200.1(g)(6)(b) provides that a claimant who

obtains catastrophic designation has a rebuttable presumption of no longer being



Pursuant to O.C.G.A. § 34-9-200.1(g)(6)(A), often referred to as the “catch all

provision”, a claimant needs to prove that he or she is unable to perform his or her previous

job and any work available in substantial numbers within the national economy. The

claimant bears the burden of proving that his or her claim qualifies for catastrophic

designation and must present competent evidence to support his or her claim. See, Reid v.

Georgia Building Authority, 283 Ga. App. 413 (2007). The State Board must make a

determination as to whether the Claimant has shown by a preponderance of the evidence

that he or she is unable perform his or her prior work and any work available in substantial

numbers within the national economy for which he or she is otherwise qualified.

Typically, counsel for the claimant obtains a vocational expert to provide an opinion

as to whether the injured worker’s restrictions prevent him or her from returning to work.

Likewise, the attorney for the employer/insurer typically retains their own expert to provide

a competing opinion. The strength of the opinion of the vocational expert is one of the most

important factors in whether a claim receives catastrophic designation.

In addition to the vocational report, counsel for the claimant also often provides a

SSDI award to support his or her claim. O.C.G.A. § 34-9-200.1(g)(6)(a) provides that “a

decision granting or denying disability income benefits under Title 2 or supplemental

security income benefits under Title 6 of the Social Security Act shall be admissible in

evidence and the Board shall give the evidence the consideration and deference due under

the circumstances regarding the issue of whether the injury is a catastrophic injury;

provided, however, that no presumption shall be created by any decision granting or denying

disability income benefits under Title 2 or supplemental security income benefits under Title

6 of the Social Security Act.” A reading of this section shows that receipt of Social Security

Disability benefits, at most, creates a rebuttable presumption that the claim qualifies for

catastrophic designation. It is important that the attorney for the injured worker provide

not only the Social Security decision granting benefits but also the portion of the decision

outlining the rationale for which benefits were awarded. Without any rationale as to why

the claimant received benefits, the award has limited value. Often, claimants have health

conditions, many of which are unrelated to the work injury. As such, it is important to look

at the award carefully to determine whether the work injury was the primary factor, or a

factor at all, in the Social Security Administration’s decision to award benefits.

Another point of emphasis in litigating a catastrophic claim is the claimant’s work

history. The more skills and education the claimant has, the less likely the claimant is to

qualify for catastrophic designation. As such, it is important to obtain accurate information

as to the Claimant’s work history and education level.

Often, employers/insurers rely on Functional Capacity Evaluations (“FCEs”) to obtain

an objective analysis regarding the claimant’s ability to perform physical tasks. These

reports are usually provided to both the authorized treating physician and any vocational

rehab expert in an effort to determine an accurate work status. In a case where there are

multiple physicians that have provided opinions as to the claimant’s ability to work, FCE’s

can often provide a more objective analysis.


If the State Board finds that a claimant has shown by a preponderance of the

evidence that his or her claim qualifies for catastrophic designation, this does not prevent

an employer/insurer from subsequently arguing that the claim no longer qualifies for

catastrophic designation. O.C.G.A. § 34-9-200.1(g)(6)(b) provides that a claimant who

obtains catastrophic designation has a rebuttable presumption of no longer being


catastrophic once he or she reaches the age of eligibility for retirement benefits. As such an

employer/insurer can request a hearing seeking to challenge the catastrophic designation on

the basis that a claimant has reached the age of eligibility for retirement benefits and it is

an employer/insurer’s burden to show that a claimant is no longer entitled to receive

benefits pursuant to a prior catastrophic designation.

Another way that the employer/insurer can challenge a previous catastrophic

designation is to argue that the claimant has undergone a change in condition for the better

and is no longer entitled to receive indemnity benefits. However, it is important to note

that a claim can continue to be catastrophic regardless of whether the claimant returns to

some type of work if the claim was determined to be catastrophic pursuant to one of the

O.C.G.A. § 34-9-200.1(g)(3) categories.


In claims where there is a low probability of success in arguing against catastrophic

designation, employers/insurers can accept the claim as catastrophic and select its

preferred rehab supplier. It is actually possible for an employer/insurer to lose at the

hearing level and select its catastrophic rehabilitation supplier as long as it timely files a

WC-R1 after the adverse decision. However, if the employer/insurer appeals an adverse

decision to the Appellate Division and loses again, it loses its ability to select the rehab

supplier. A rehab supplier plays a large role in directing the treatment and care of the

claimant after a claim has been designated as catastrophic. There are many benefits if the

employer can select the rehab supplier of its choice. Further, a claimant is required to

cooperate with a rehab supplier, including a supplier’s efforts to return the claimant to

work. As such, if a claimant does not cooperate with the rehab supplier’s efforts, it may

provide the employer/insurer with a basis to request a hearing to suspend benefits.

If a claim has been established as catastrophic, the claimant’s benefits cannot be

converted to temporary partial disability but instead he or she receives the full temporary

total disability pay rate for the duration of the claim. Further, there is no cap on medical

benefits. The claimant also receives rehab benefits such as vocational training, housing, and

transportation if the claimant receives catastrophic designation. The claimant would be

entitled to the medical treatment regardless of whether he or she had the ability to work.


A request for catastrophic designation must be timely and filed within the applicable

statute of limitations. In Roseburg Forest Products Co. et al v. Barnes, 299 Ga. 167 (2016),

the Supreme Court of Georgia stated that a claimant must file for additional indemnity

benefits through a catastrophic designation within two (2) years of last having received TTD

or TPD benefits, even when a claim had previously been accepted as catastrophic in nature.

It is not enough for the claimant to have had a right to seek benefits but instead the

claimant must have sought to enforce that right.

In Barnes, the Claimant suffered an amputation of his left leg. The claim was

accepted and the employer/insurer began paying TTD benefits. Subsequently, the Claimant

returned to work, the employer/insurer stopped paying TTD benefits and began paying PPD

benefits instead. A hearing request to recommence TTD benefits was not filed until

approximately fourteen (14) years after the claimant stopped receiving benefit payments.

The claimant’s attorney argued that he could receive indemnity benefits indefinitely

because his claim was deemed catastrophic. However, the Court reasoned that even if a

claim had been designated catastrophic, a claimant must seek to enforce his right to receive

indemnity benefits within two (2) years of the last receipt of TTD or TPD benefits.


catastrophic once he or she reaches the age of eligibility for retirement benefits. As such an

employer/insurer can request a hearing seeking to challenge the catastrophic designation on

the basis that a claimant has reached the age of eligibility for retirement benefits and it is

an employer/insurer’s burden to show that a claimant is no longer entitled to receive

benefits pursuant to a prior catastrophic designation.

Another way that the employer/insurer can challenge a previous catastrophic

designation is to argue that the claimant has undergone a change in condition for the better

and is no longer entitled to receive indemnity benefits. However, it is important to note

that a claim can continue to be catastrophic regardless of whether the claimant returns to

some type of work if the claim was determined to be catastrophic pursuant to one of the

O.C.G.A. § 34-9-200.1(g)(3) categories.


In claims where there is a low probability of success in arguing against catastrophic

designation, employers/insurers can accept the claim as catastrophic and select its

preferred rehab supplier. It is actually possible for an employer/insurer to lose at the

hearing level and select its catastrophic rehabilitation supplier as long as it timely files a

WC-R1 after the adverse decision. However, if the employer/insurer appeals an adverse

decision to the Appellate Division and loses again, it loses its ability to select the rehab

supplier. A rehab supplier plays a large role in directing the treatment and care of the

claimant after a claim has been designated as catastrophic. There are many benefits if the

employer can select the rehab supplier of its choice. Further, a claimant is required to

cooperate with a rehab supplier, including a supplier’s efforts to return the claimant to

work. As such, if a claimant does not cooperate with the rehab supplier’s efforts, it may

provide the employer/insurer with a basis to request a hearing to suspend benefits.

If a claim has been established as catastrophic, the claimant’s benefits cannot be

converted to temporary partial disability but instead he or she receives the full temporary

total disability pay rate for the duration of the claim. Further, there is no cap on medical

benefits. The claimant also receives rehab benefits such as vocational training, housing, and

transportation if the claimant receives catastrophic designation. The claimant would be

entitled to the medical treatment regardless of whether he or she had the ability to work.


A request for catastrophic designation must be timely and filed within the applicable

statute of limitations. In Roseburg Forest Products Co. et al v. Barnes, 299 Ga. 167 (2016),

the Supreme Court of Georgia stated that a claimant must file for additional indemnity

benefits through a catastrophic designation within two (2) years of last having received TTD

or TPD benefits, even when a claim had previously been accepted as catastrophic in nature.

It is not enough for the claimant to have had a right to seek benefits but instead the

claimant must have sought to enforce that right.

In Barnes, the Claimant suffered an amputation of his left leg. The claim was

accepted and the employer/insurer began paying TTD benefits. Subsequently, the Claimant

returned to work, the employer/insurer stopped paying TTD benefits and began paying PPD

benefits instead. A hearing request to recommence TTD benefits was not filed until

approximately fourteen (14) years after the claimant stopped receiving benefit payments.

The claimant’s attorney argued that he could receive indemnity benefits indefinitely

because his claim was deemed catastrophic. However, the Court reasoned that even if a

claim had been designated catastrophic, a claimant must seek to enforce his right to receive

indemnity benefits within two (2) years of the last receipt of TTD or TPD benefits.


Accordingly, it is imperative that a claimant at least file a request to recommence

indemnity benefits within the applicable statute of limitations.

1:10 PROFESSIONALISM IN WORKERS’ COMPENSATION CASES Hon. Sharon H. Reeves, Administrative Law Judge, State Board of Workers’ Compensation, Macon John D. Christy, John D. Christy P.C., Perry Russell C. Wallace, Wallace Law Group, PC, Valdosta


PROFESSIONALISM IN THE WORKERS’ COMPENSATION ARENA

Sharon H. Reeves Administrative Law Judge

Georgia State Board of Workers' Compensation Macon, GA

John Christy

John D. Christy P.C. 909 Ball Street PO Box 1816

Perry, GA 31069-1816 (478) 987-9000

Russell Wallace

Wallace Law Group 102 West Moore Street

PO Box 2157 Valdosta, GA 31604-2157

(229) 245-0090

Page 2 of 12

“Ethics is a minimum standard which is required of all lawyers while professionalism is a higher standard expected of all lawyers.”

- Chief Justice Harold Clarke, deceased, Georgia Supreme Court

“A lawyer is … a citizen having special responsibility for the quality of justice.”

- Preamble to the Georgia Rules of Professional Conduct. As lawyers, we have a special responsibility for the administration of justice and the reputation of our profession. The cornerstone of professionalism is respect for ourselves and others. In the words of Former Governor Zell Miller, deceased, “Consistent respect for ourselves and others will go a long way toward solving many of the problems of society.” Professionalism should be woven throughout all your actions, especially when you are representing a client. Every action you take and word you speak or write is a reflection on your client. Pretrial Professionalism. Usually, the most important part of representing your client with the zeal required of our profession occurs pretrial. “A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. However, … [t]he lawyers’ duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.” Comment to Rule 1.3 Georgia Rules of Professional Conduct. A zealous and professional lawyer answers the phone, promptly returns calls, and picks up the phone to talk out a problem with opposing counsel when one arises. A zealous and professional advocate fully and promptly answers discovery and remembers the duty to supplement when new information arises. A professional advocate does not attach discovery to a lengthy cover letter that does not reference the discovery and then attempt to take advantage when the discovery is overlooked by opposing counsel. A professional lawyer cares about his/her reputation, having opposing counsel that holds him in high esteem, and having judges that can take him at his word.


PROFESSIONALISM IN THE WORKERS’ COMPENSATION ARENA

Sharon H. Reeves Administrative Law Judge

Georgia State Board of Workers' Compensation Macon, GA

John Christy

John D. Christy P.C. 909 Ball Street PO Box 1816

Perry, GA 31069-1816 (478) 987-9000

Russell Wallace

Wallace Law Group 102 West Moore Street

PO Box 2157 Valdosta, GA 31604-2157

(229) 245-0090

Page 2 of 12

“Ethics is a minimum standard which is required of all lawyers while professionalism is a higher standard expected of all lawyers.”

- Chief Justice Harold Clarke, deceased, Georgia Supreme Court

“A lawyer is … a citizen having special responsibility for the quality of justice.”

- Preamble to the Georgia Rules of Professional Conduct. As lawyers, we have a special responsibility for the administration of justice and the reputation of our profession. The cornerstone of professionalism is respect for ourselves and others. In the words of Former Governor Zell Miller, deceased, “Consistent respect for ourselves and others will go a long way toward solving many of the problems of society.” Professionalism should be woven throughout all your actions, especially when you are representing a client. Every action you take and word you speak or write is a reflection on your client. Pretrial Professionalism. Usually, the most important part of representing your client with the zeal required of our profession occurs pretrial. “A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. However, … [t]he lawyers’ duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.” Comment to Rule 1.3 Georgia Rules of Professional Conduct. A zealous and professional lawyer answers the phone, promptly returns calls, and picks up the phone to talk out a problem with opposing counsel when one arises. A zealous and professional advocate fully and promptly answers discovery and remembers the duty to supplement when new information arises. A professional advocate does not attach discovery to a lengthy cover letter that does not reference the discovery and then attempt to take advantage when the discovery is overlooked by opposing counsel. A professional lawyer cares about his/her reputation, having opposing counsel that holds him in high esteem, and having judges that can take him at his word.


Page 3 of 12

In workers’ compensation, we require consolidated documentary evidence. “Prior to the commencement of a hearing, the parties shall consolidate any and all records, including but not limited to medical records, and any other documentary evidence to be admitted at a hearing in order to avoid any repetition and duplication.” Board Rule 102(E)(3)(a). A professional lawyer tells opposing counsel what records, notes, etc. are omitted from a proffered exhibit and offers the exhibits to opposing counsel in enough time before the hearing for opposing counsel to thoroughly review them. Medical evidence should be exchanged between the parties as soon as practicable, but no later than 10 days prior to the hearing. Board Rule 102(E)(3)(b). Professionalism requires this exchange as soon as practicable. The 10-day requirement is the minimum acceptable standard. Keep in mind that under Rule 102(F)(1), either before or after a hearing request is filed, the parties are entitled to receive from each other all medical records and reports in their possession concerning treatment of the work-accident. The employee is also entitled to copies of all medical records and reports which were obtained with a release from the employee at no expense to the employee. Form 102 should be used for this purpose. Professionalism requires the parties to agree to stipulations on undisputed matters or those that require burdensome proof unnecessarily. The issue of average weekly wage is an example. Board Rule 102(E)(3)(c) requires the parties to exchange written contentions with respect to their methods of calculation at least 10 days prior to the hearing. A professional lawyer has excellent manners. Good manners in conference calls are especially necessary. Remaining silent while others are talking is imperative. Your words will be lost if you speak when others are speaking. You will also appear rude and disrespectful, and thus unprofessional if you speak when others are speaking. This is a disservice to your client. Administrative Law Judges welcome conference calls with parties. Any ex parte communication, including electronic mail, with an Administrative Law Judge or the Board in a pending claim is prohibited. Board Rule102(A)(2). Conference calls are useful for dealing with

Page 4 of 12

continuances in a way that can accommodate the concerns of all. Discussing evidentiary issues pretrial is helpful to all. Sandbagging an evidentiary issue at a hearing is rarely tolerated in a workers’ compensation hearing and will likely result in a continuance, which wastes the time and resources of your client. Sometimes talking through a frustrating situation with a neutral can help a claim move along. In conference calls, as in all other matters, if you or your client has made a mistake, acknowledge it. Never try to cover it up; it will make you look dishonest. In pretrial dealings with the Board, making an early announcement on whether a case will be continued or tried is appreciated by the administrative assistants and the Board. The absolute last moment a case may be announced is 2:00 p.m. on the business day immediately before the scheduled hearing. Board Rule 102(C)(1). Professionalism requires an earlier announcement. Each calendar may contain up to 75 cases, each requiring further action by administrative staff after your announcement. Emails are a good way to communicate your announcement to the Board and opposing counsel. Administrative staff can easily respond to all parties so that everyone has documentation for their file. Professionalism requires you to make yourself available to opposing counsel to discuss your intentions about moving forward with the hearing many days in advance. Nothing makes a lawyer look more unprepared and unprofessional than an ALJ receiving a message the day before a hearing that counsel has been unable to secure an announcement from opposing counsel. A lawyer that uses this tactic makes his/her client appear unimportant. That is a failure of the duty of professionalism and zealous representation. Professionalism in Motions. Legally, parties are required by Board Rule to confer with opposing counsel or the pro se party to make a good-faith effort to resolve disputed matters before filing a motion. Board Rule (D)(2). Still, motions are a frequent part of workers’ compensation practice. I cannot overstate how important professionalism is to your client in your motion practice. Judges do not have an opportunity to hear from parties on motions. Your presentation as a lawyer is all we see (outside of affidavit evidence). Disparaging remarks have no place in motions, or anywhere else. Disparaging comments are offensive. They take away from the merits


Page 3 of 12

In workers’ compensation, we require consolidated documentary evidence. “Prior to the commencement of a hearing, the parties shall consolidate any and all records, including but not limited to medical records, and any other documentary evidence to be admitted at a hearing in order to avoid any repetition and duplication.” Board Rule 102(E)(3)(a). A professional lawyer tells opposing counsel what records, notes, etc. are omitted from a proffered exhibit and offers the exhibits to opposing counsel in enough time before the hearing for opposing counsel to thoroughly review them. Medical evidence should be exchanged between the parties as soon as practicable, but no later than 10 days prior to the hearing. Board Rule 102(E)(3)(b). Professionalism requires this exchange as soon as practicable. The 10-day requirement is the minimum acceptable standard. Keep in mind that under Rule 102(F)(1), either before or after a hearing request is filed, the parties are entitled to receive from each other all medical records and reports in their possession concerning treatment of the work-accident. The employee is also entitled to copies of all medical records and reports which were obtained with a release from the employee at no expense to the employee. Form 102 should be used for this purpose. Professionalism requires the parties to agree to stipulations on undisputed matters or those that require burdensome proof unnecessarily. The issue of average weekly wage is an example. Board Rule 102(E)(3)(c) requires the parties to exchange written contentions with respect to their methods of calculation at least 10 days prior to the hearing. A professional lawyer has excellent manners. Good manners in conference calls are especially necessary. Remaining silent while others are talking is imperative. Your words will be lost if you speak when others are speaking. You will also appear rude and disrespectful, and thus unprofessional if you speak when others are speaking. This is a disservice to your client. Administrative Law Judges welcome conference calls with parties. Any ex parte communication, including electronic mail, with an Administrative Law Judge or the Board in a pending claim is prohibited. Board Rule102(A)(2). Conference calls are useful for dealing with

Page 4 of 12

continuances in a way that can accommodate the concerns of all. Discussing evidentiary issues pretrial is helpful to all. Sandbagging an evidentiary issue at a hearing is rarely tolerated in a workers’ compensation hearing and will likely result in a continuance, which wastes the time and resources of your client. Sometimes talking through a frustrating situation with a neutral can help a claim move along. In conference calls, as in all other matters, if you or your client has made a mistake, acknowledge it. Never try to cover it up; it will make you look dishonest. In pretrial dealings with the Board, making an early announcement on whether a case will be continued or tried is appreciated by the administrative assistants and the Board. The absolute last moment a case may be announced is 2:00 p.m. on the business day immediately before the scheduled hearing. Board Rule 102(C)(1). Professionalism requires an earlier announcement. Each calendar may contain up to 75 cases, each requiring further action by administrative staff after your announcement. Emails are a good way to communicate your announcement to the Board and opposing counsel. Administrative staff can easily respond to all parties so that everyone has documentation for their file. Professionalism requires you to make yourself available to opposing counsel to discuss your intentions about moving forward with the hearing many days in advance. Nothing makes a lawyer look more unprepared and unprofessional than an ALJ receiving a message the day before a hearing that counsel has been unable to secure an announcement from opposing counsel. A lawyer that uses this tactic makes his/her client appear unimportant. That is a failure of the duty of professionalism and zealous representation. Professionalism in Motions. Legally, parties are required by Board Rule to confer with opposing counsel or the pro se party to make a good-faith effort to resolve disputed matters before filing a motion. Board Rule (D)(2). Still, motions are a frequent part of workers’ compensation practice. I cannot overstate how important professionalism is to your client in your motion practice. Judges do not have an opportunity to hear from parties on motions. Your presentation as a lawyer is all we see (outside of affidavit evidence). Disparaging remarks have no place in motions, or anywhere else. Disparaging comments are offensive. They take away from the merits


Page 5 of 12

of a client’s case and weaken the attorney’s argument. Disparaging opinions about an attorney, party or physician are not evidence and have no place in motions or any other part of practice. Remember that emails are often attached as exhibits to motions. Email like it will be read by an Administrative Law Judge. Keep your comments and correspondence professional. When a motion resolves, in whole or in part, you have a duty to inform the Board. Board Rule 102(D)(4). While writing this paper, I received a letter of apology from an attorney who overlooked this duty. I attach it for your review, because he handled the situation with such professionalism. In addition to being professional and courteous, prompt announcement of a resolution prevents negatively affecting your client’s case. If an Order is issued after you have reached an agreement with the opposing party, a contrary order from an ALJ can unnecessarily complicate the claim. Do not overlook the obligation to electronically file in ICMS and serve the opposing party or counsel by electronic mail. Your filing in ICMS constitutes your signature and certifies that the attorney has authorized the filing. Therefore, do not permit your login or password to be used by anyone other than your authorized employee. Board Rule 102.1(c) and (d). Please note that filing in ICMS does not constitute service on the opposing party or counsel. “Service upon a party or attorney of any form, document, or other correspondence shall be by electronic mail” when available. Board Rule 102.1(h). Professionalism in Settlements. A professional attorney makes a reasonable settlement demand that is well-grounded in the Workers’ Compensation Act and the facts of the case. A professional attorney does not increase the demand at mediation without prior notice to the opposing party. Properly and wisely advise your client of the value of the case. Board Rule 100(g)(1) requires someone with adequate authority to attend. Adequate authority means a sufficient amount to resolve the issues. If you arrive with less authority on behalf of an employer/insurer, or unreasonable expectations on behalf of an employee, I submit that you are violating your duty of professionalism. You are wasting your client’s resources if you do not have reasonable authority to resolve a claim and you are not treating the opposing party with professional respect. Professionalism

Page 6 of 12

requires treating opposing counsel and parties with respect and dignity at a mediation. There is no room for disparaging remarks or disrespect at a mediation. Where there is acrimony in a claim, mediators are willing to skip opening statements and opening caucus to alleviate discord. If this is necessary, recommend it to opposing counsel and the mediator before the parties gather for mediation. Understand who may participate in a mediation before appearing for the mediation. Board Rule 100(g)(2) states, “Only the parties and attorneys of record may attend a scheduled mediation. Exceptions to attendance may be granted if agreed or consented to by the parties and attorneys of record and approved by a mediator or an Administrative Law Judge.” Often, it is permissible for others to attend. A professional attorney obtains that permission before commencement of the mediation. Professionalism in Hearings. Again, good manners cannot be emphasized enough. Quite simply, a courteous attorney makes his client look good. Please understand if you are snarky in court, both you and your client look bad. You have failed your duty of zealous representation and professionalism if you make your client look bad through your poor conduct. A professional attorney is prepared and knows the case. Have your exhibits consolidated and your stipulations ironed out beforehand. Professionalism requires addressing the judge instead of your opposing counsel, showing opposing counsel a document before you approach the witness, and not making personal attacks on opposing counsel or engaging in discourteous behavior. Board Rule 102(E) states, “(1) No person shall, during the course of a proceeding before an Administrate Law Judge or Director, engage in any discourteous or disruptive conduct. (2) Any violation of the Georgia Rules of Professional Conduct of the State Bar of Georgia may subject an attorney to the assessment of a civil penalty pursuant to OCGA § 34-9-18 and referral to the State Bar of Georgia for disciplinary action.” Good manners and common courtesy will often keep you in bounds of the Rules of Professional Conduct. Professionalism in Briefs. Professionalism in Briefs should be the same as in motions. The Judge has had an opportunity to see and weigh the evidence. Your brief should emphasize the facts in your


Page 5 of 12

of a client’s case and weaken the attorney’s argument. Disparaging opinions about an attorney, party or physician are not evidence and have no place in motions or any other part of practice. Remember that emails are often attached as exhibits to motions. Email like it will be read by an Administrative Law Judge. Keep your comments and correspondence professional. When a motion resolves, in whole or in part, you have a duty to inform the Board. Board Rule 102(D)(4). While writing this paper, I received a letter of apology from an attorney who overlooked this duty. I attach it for your review, because he handled the situation with such professionalism. In addition to being professional and courteous, prompt announcement of a resolution prevents negatively affecting your client’s case. If an Order is issued after you have reached an agreement with the opposing party, a contrary order from an ALJ can unnecessarily complicate the claim. Do not overlook the obligation to electronically file in ICMS and serve the opposing party or counsel by electronic mail. Your filing in ICMS constitutes your signature and certifies that the attorney has authorized the filing. Therefore, do not permit your login or password to be used by anyone other than your authorized employee. Board Rule 102.1(c) and (d). Please note that filing in ICMS does not constitute service on the opposing party or counsel. “Service upon a party or attorney of any form, document, or other correspondence shall be by electronic mail” when available. Board Rule 102.1(h). Professionalism in Settlements. A professional attorney makes a reasonable settlement demand that is well-grounded in the Workers’ Compensation Act and the facts of the case. A professional attorney does not increase the demand at mediation without prior notice to the opposing party. Properly and wisely advise your client of the value of the case. Board Rule 100(g)(1) requires someone with adequate authority to attend. Adequate authority means a sufficient amount to resolve the issues. If you arrive with less authority on behalf of an employer/insurer, or unreasonable expectations on behalf of an employee, I submit that you are violating your duty of professionalism. You are wasting your client’s resources if you do not have reasonable authority to resolve a claim and you are not treating the opposing party with professional respect. Professionalism

Page 6 of 12

requires treating opposing counsel and parties with respect and dignity at a mediation. There is no room for disparaging remarks or disrespect at a mediation. Where there is acrimony in a claim, mediators are willing to skip opening statements and opening caucus to alleviate discord. If this is necessary, recommend it to opposing counsel and the mediator before the parties gather for mediation. Understand who may participate in a mediation before appearing for the mediation. Board Rule 100(g)(2) states, “Only the parties and attorneys of record may attend a scheduled mediation. Exceptions to attendance may be granted if agreed or consented to by the parties and attorneys of record and approved by a mediator or an Administrative Law Judge.” Often, it is permissible for others to attend. A professional attorney obtains that permission before commencement of the mediation. Professionalism in Hearings. Again, good manners cannot be emphasized enough. Quite simply, a courteous attorney makes his client look good. Please understand if you are snarky in court, both you and your client look bad. You have failed your duty of zealous representation and professionalism if you make your client look bad through your poor conduct. A professional attorney is prepared and knows the case. Have your exhibits consolidated and your stipulations ironed out beforehand. Professionalism requires addressing the judge instead of your opposing counsel, showing opposing counsel a document before you approach the witness, and not making personal attacks on opposing counsel or engaging in discourteous behavior. Board Rule 102(E) states, “(1) No person shall, during the course of a proceeding before an Administrate Law Judge or Director, engage in any discourteous or disruptive conduct. (2) Any violation of the Georgia Rules of Professional Conduct of the State Bar of Georgia may subject an attorney to the assessment of a civil penalty pursuant to OCGA § 34-9-18 and referral to the State Bar of Georgia for disciplinary action.” Good manners and common courtesy will often keep you in bounds of the Rules of Professional Conduct. Professionalism in Briefs. Professionalism in Briefs should be the same as in motions. The Judge has had an opportunity to see and weigh the evidence. Your brief should emphasize the facts in your


Page 7 of 12

favor and the arguments against your opponent’s position while avoiding disparaging comments about either. Professionalism in Appeals. If you appeal beyond the Board’s Appellate Division, remember your obligations under Board Rule 105 to keep the Board informed of the progress of the appeal and the results. A word about fraud. Please understand the Workers’ Compensation Fraud Statutes are read together. A lawyer can be penalized under the Act if he/she facilitates the obtaining or denying of any benefit by knowingly and intentionally making any false or misleading statement or representation. § 34-9-19. Penalty for false or misleading statements when obtaining or denying benefits:

Any person, firm, or corporation who willfully makes any false or misleading statement or representation for the purpose of obtaining or denying any benefit or payment under this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $1,000.00 or more than $10,000.00 or by imprisonment not to exceed 12 months, or by both such fine and imprisonment. Additionally, any person, firm, or corporation who violates this Code section may also be assessed the cost of investigation or prosecution, or both, in accordance with Chapter 11 of Title 17, relating to the assessment and payment of costs of criminal proceedings. All penalties and costs assessed under this Code section shall be tendered and made payable to the State Board of Workers' Compensation. All such penalties shall be deposited in the general fund of the state treasury.

§ 34-9-18. Civil penalties; costs of collection:

… (b) Any person who knowingly and intentionally makes any false or misleading statement or representation for

Page 8 of 12

the purpose of facilitating the obtaining or denying of any benefit or payment under this chapter may be assessed a civil penalty of not less than $1,000.00 nor more than $10,000.00 per violation. (c) In addition to the penalty and assessed fees as defined in subsection (b) of Code Section 34-9-126, the board may assess a civil penalty of not less than $500.00 nor more than $5,000.00 per violation for the violation by any person of Code Section 34-9-121 or subsection (a) of Code Section 34-9-126. (d) Any penalty assessed under subsections (a), (b), and (c) of this Code section shall be final unless within ten days of the date of the assessment the person fined files a written request with the board for a hearing on the matter. (e) Any person, firm, or corporation who is assessed a civil penalty pursuant to this Code section may also be assessed the cost of collection. The cost of collection may also include reasonable attorneys' fees. (f) All penalties and costs assessed under this Code section shall be tendered and made payable to the State Board of Workers' Compensation. All such penalties shall be deposited in the general fund of the state treasury.

In conclusion, reading the Preamble to the Georgia Rules on Professional Conduct should be an annual part of your practice. It is attached. Treat others with respect and take great care with your reputation and you will continue to make the Workers’ Compensation Section the most professional in the Bar.


Page 7 of 12

favor and the arguments against your opponent’s position while avoiding disparaging comments about either. Professionalism in Appeals. If you appeal beyond the Board’s Appellate Division, remember your obligations under Board Rule 105 to keep the Board informed of the progress of the appeal and the results. A word about fraud. Please understand the Workers’ Compensation Fraud Statutes are read together. A lawyer can be penalized under the Act if he/she facilitates the obtaining or denying of any benefit by knowingly and intentionally making any false or misleading statement or representation. § 34-9-19. Penalty for false or misleading statements when obtaining or denying benefits:

Any person, firm, or corporation who willfully makes any false or misleading statement or representation for the purpose of obtaining or denying any benefit or payment under this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $1,000.00 or more than $10,000.00 or by imprisonment not to exceed 12 months, or by both such fine and imprisonment. Additionally, any person, firm, or corporation who violates this Code section may also be assessed the cost of investigation or prosecution, or both, in accordance with Chapter 11 of Title 17, relating to the assessment and payment of costs of criminal proceedings. All penalties and costs assessed under this Code section shall be tendered and made payable to the State Board of Workers' Compensation. All such penalties shall be deposited in the general fund of the state treasury.

§ 34-9-18. Civil penalties; costs of collection:

… (b) Any person who knowingly and intentionally makes any false or misleading statement or representation for

Page 8 of 12

the purpose of facilitating the obtaining or denying of any benefit or payment under this chapter may be assessed a civil penalty of not less than $1,000.00 nor more than $10,000.00 per violation. (c) In addition to the penalty and assessed fees as defined in subsection (b) of Code Section 34-9-126, the board may assess a civil penalty of not less than $500.00 nor more than $5,000.00 per violation for the violation by any person of Code Section 34-9-121 or subsection (a) of Code Section 34-9-126. (d) Any penalty assessed under subsections (a), (b), and (c) of this Code section shall be final unless within ten days of the date of the assessment the person fined files a written request with the board for a hearing on the matter. (e) Any person, firm, or corporation who is assessed a civil penalty pursuant to this Code section may also be assessed the cost of collection. The cost of collection may also include reasonable attorneys' fees. (f) All penalties and costs assessed under this Code section shall be tendered and made payable to the State Board of Workers' Compensation. All such penalties shall be deposited in the general fund of the state treasury.

In conclusion, reading the Preamble to the Georgia Rules on Professional Conduct should be an annual part of your practice. It is attached. Treat others with respect and take great care with your reputation and you will continue to make the Workers’ Compensation Section the most professional in the Bar.


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March 22, 2018 Honorable Sharon H. Reeves State Board of Workers’ Compensation 110 Holiday Drive North Macon, GA 31210-1802 Re: ************* v. **********************************

********************************** ***************** *****************

Dear Judge Reeves: Opposing counsel, ***************, has contacted me about the Motion that I recently filed and your *************** Order. Mr. ************** accurately points out that, subsequent to the filing of the motion, on March 6th, we received the attorney’s fee portion of the Stipulation & Agreement. He further accurately points out that I had an obligation to inform you of the receipt of that check pursuant to Board Rule 102 (D)(4). After reviewing the Rule, I agree with him and will only say in my defense that it did not occur to me that I had an obligation to do this and my thought process was that it was irrelevant because it came after I filed the Motion. I was wrong, however, in that there is no doubt that I should have let you know about the receipt of the check and, for that, I apologize. Mr. ************* tells me that he will not be objecting to the assessment of the attorney’s fees. He has asked me to write to you and point out to you that indeed the check was received. I do not know what factors went into your decision to impose the civil penalty. I would ask that you reevaluate your decision in light of this new information. Again, I apologize for wasting your time and thank you very much for your attention to this. Sincerely,

Page 10 of 12

PREAMBLE: A LAWYER'S RESPONSIBILITIES GEORGIA RULES OF PROFESSIONAL CONDUCT [1] A lawyer is a representative of clients, an officer of the legal system and a citizen having special responsibility for the quality of justice. [2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client's legal affairs and reporting about them to the client or to others. [3] In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by these Rules or other law. [4] A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the law, the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process. [5] As a citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and


Page 9 of 12

March 22, 2018 Honorable Sharon H. Reeves State Board of Workers’ Compensation 110 Holiday Drive North Macon, GA 31210-1802 Re: ************* v. **********************************

********************************** ***************** *****************

Dear Judge Reeves: Opposing counsel, ***************, has contacted me about the Motion that I recently filed and your *************** Order. Mr. ************** accurately points out that, subsequent to the filing of the motion, on March 6th, we received the attorney’s fee portion of the Stipulation & Agreement. He further accurately points out that I had an obligation to inform you of the receipt of that check pursuant to Board Rule 102 (D)(4). After reviewing the Rule, I agree with him and will only say in my defense that it did not occur to me that I had an obligation to do this and my thought process was that it was irrelevant because it came after I filed the Motion. I was wrong, however, in that there is no doubt that I should have let you know about the receipt of the check and, for that, I apologize. Mr. ************* tells me that he will not be objecting to the assessment of the attorney’s fees. He has asked me to write to you and point out to you that indeed the check was received. I do not know what factors went into your decision to impose the civil penalty. I would ask that you reevaluate your decision in light of this new information. Again, I apologize for wasting your time and thank you very much for your attention to this. Sincerely,

Page 10 of 12

PREAMBLE: A LAWYER'S RESPONSIBILITIES GEORGIA RULES OF PROFESSIONAL CONDUCT [1] A lawyer is a representative of clients, an officer of the legal system and a citizen having special responsibility for the quality of justice. [2] As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client's legal affairs and reporting about them to the client or to others. [3] In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by these Rules or other law. [4] A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the law, the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process. [5] As a citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and


Page 11 of 12

should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. [6] A lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as by substantive and procedural law. A lawyer also is guided by conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service. [7] Reserved. [8] In the nature of law practice conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict among a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these Rules, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. [9] The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested in the Supreme Court of Georgia. [10] To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.

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[11] The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. [12] The fulfillment of a lawyer's professional responsibility role requires an understanding by them of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.


Page 11 of 12

should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. [6] A lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as by substantive and procedural law. A lawyer also is guided by conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service. [7] Reserved. [8] In the nature of law practice conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict among a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these Rules, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. [9] The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested in the Supreme Court of Georgia. [10] To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.

Page 12 of 12

[11] The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. [12] The fulfillment of a lawyer's professional responsibility role requires an understanding by them of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.


2:00 PETITIONS FOR MEDICAL TREATMENT AND OTHER PRE-TRIAL MOTIONS Hon. David K. Imahara, Administrative Law Judge, State Board of Workers’ Compensation, Atlanta Sarah E. Stottlemyer, Stottlemyer & Associates, LLC, Atlanta Stephen J. Graham, Drew Eckl & Farnham LLP, Atlanta


4/19/18

1

Petitions for Medical Treatment and Other Pre-Trial MotionsHonorable David K. ImaharaState Board of Workers’ Compensation

Stephen J. GrahamDrew Eckl & Farnham, LLP

Sarah E. StottlemyerStottlemyer & Associates, LLC

Medical Treatment Requests

4/19/18

2

Requests for Preauthorization of Medical Care

• Some physicians may request preauthorization for treatment or tests by submitting a Board Form WC-205 to the employer/insurer.

• The employer/insurer then has five business days to file a responsive Form WC-205 either authorizing or controverting the treatment.

• If the employer/insurer files a refusal to authorize, then it must, within 21 days, either authorize the requested treatment, or file a Form WC-3 controverting the requested treatment and setting forth the grounds for controversion.


4/19/18

1

Petitions for Medical Treatment and Other Pre-Trial MotionsHonorable David K. ImaharaState Board of Workers’ Compensation

Stephen J. GrahamDrew Eckl & Farnham, LLP

Sarah E. StottlemyerStottlemyer & Associates, LLC


4/19/18

2

Requests for Preauthorization of Medical Care

• Some physicians may request preauthorization for treatment or tests by submitting a Board Form WC-205 to the employer/insurer.

• The employer/insurer then has five business days to file a responsive Form WC-205 either authorizing or controverting the treatment.

• If the employer/insurer files a refusal to authorize, then it must, within 21 days, either authorize the requested treatment, or file a Form WC-3 controverting the requested treatment and setting forth the grounds for controversion.


4/19/18

3

Petitions for Medical Treatment• The Form WC-PMT was created to use when an

employer/insurer has failed to respond to a request for authorization of treatment/testing by an authorized medical provider within five business days of the request.

• The purpose of the conference is for the employer/ insurer to show cause why the treatment or testing at issue has not been authorized.

• The WC-PMT acts as a request to the Board to issue a notice of a show cause telephonic conference before an administrative law judge within five business days.

Petitions for Medical Treatment

• In lieu of participation in the telephonic conference, the employer/insurer may use this form to authorize or controvert the recommended treatment. – If the employer/insurer does this, the telephonic conference is

automatically cancelled.

• Following the telephonic conference, the ALJ may issue an Interlocutory Order regarding the authorization of the treatment/testing at issue. – If the ALJ determines that it should be authorized, the Order will

require the employer/insurer provide written authorization to the medical provider.

4/19/18

4


• Any party may object to the Order by requesting a hearing within 20 days.

• The absence of a hearing request within that time will act as consent to payment for the treatment/testing.


4/19/18

3

Petitions for Medical Treatment• The Form WC-PMT was created to use when an

employer/insurer has failed to respond to a request for authorization of treatment/testing by an authorized medical provider within five business days of the request.

• The purpose of the conference is for the employer/ insurer to show cause why the treatment or testing at issue has not been authorized.

• The WC-PMT acts as a request to the Board to issue a notice of a show cause telephonic conference before an administrative law judge within five business days.


• In lieu of participation in the telephonic conference, the employer/insurer may use this form to authorize or controvert the recommended treatment. – If the employer/insurer does this, the telephonic conference is

automatically cancelled.

• Following the telephonic conference, the ALJ may issue an Interlocutory Order regarding the authorization of the treatment/testing at issue. – If the ALJ determines that it should be authorized, the Order will

require the employer/insurer provide written authorization to the medical provider.

4/19/18

4


• Any party may object to the Order by requesting a hearing within 20 days.

• The absence of a hearing request within that time will act as consent to payment for the treatment/testing.


4/19/18

5

Discovery Motions

Form WC-102 Request for Documents to Parties

• Under Board Rule 102(F)(1), before or

after a Request for Hearing is filed in a

claim, the parties are entitled to receive

from each other the documents specified

in the Form WC-102 within 30 days of the

date of the certificate of service.

– This includes Board Forms, the

employer’s panel of physicians, and

employee wage records.

4/19/18

6

Triggering Discovery under the Civil Practice Act

• Board Rule 102(F)(2) mandates that any other discovery to be conducted pursuant to the Civil Practice Act is only permitted after a hearing has been requested in the claim.


4/19/18

5

Discovery Motions

Form WC-102 Request for Documents to Parties

• Under Board Rule 102(F)(1), before or

after a Request for Hearing is filed in a

claim, the parties are entitled to receive

from each other the documents specified

in the Form WC-102 within 30 days of the

date of the certificate of service.

– This includes Board Forms, the

employer’s panel of physicians, and

employee wage records.

4/19/18

6

Triggering Discovery under the Civil Practice Act

• Board Rule 102(F)(2) mandates that any other discovery to be conducted pursuant to the Civil Practice Act is only permitted after a hearing has been requested in the claim.


4/19/18

7

Other Motions or Objections• Under Board Rule 102(D), any motions or objections for

which a specific Board Form does not exist are to be filed on a Form WC-102D.

• Prior to filing a motion, the moving party must confer with the opposing party in a good-faith effort to resolve the matter.

• If the matter cannot be resolved, Rule 102(D)(3) states that a party objecting to a motion must respond on a Form WC-102D, and file it with the Board within 15 days of the date of the certificate of service on the request.

Change of Physician

4/19/18

8

Change of Physician• Pursuant to O.C.G.A. § 34-9-201(b)(1), an employee

may make one change from a physician on the employer’s panel of physicians to another physician on the same panel as of right.

• Any further changes may be made only by agreement of the parties or by order of the Board under Board Rule 200(b)(1).

• Any party may request a change in physician, and the Board may order a change in physician upon its own motion as well.

Change of Physician• The party seeking the change must make a good faith

effort to reach an agreement on the change before requesting an order from the Board.

• If the parties agree on a change of physician, a Form WC-200a should be completed by one party and signed by all parties before being filed with the Board.

• If an agreement cannot be reached, the party requesting the change must file a Form WC-200b specifying the reason for the requested change and the date that the change will be effective. – A party objecting to the request must file their objection on a

Form WC-200b within 15 days of service of the original request.


4/19/18

7

Other Motions or Objections• Under Board Rule 102(D), any motions or objections for

which a specific Board Form does not exist are to be filed on a Form WC-102D.

• Prior to filing a motion, the moving party must confer with the opposing party in a good-faith effort to resolve the matter.

• If the matter cannot be resolved, Rule 102(D)(3) states that a party objecting to a motion must respond on a Form WC-102D, and file it with the Board within 15 days of the date of the certificate of service on the request.

Change of Physician

4/19/18

8

Change of Physician• Pursuant to O.C.G.A. § 34-9-201(b)(1), an employee

may make one change from a physician on the employer’s panel of physicians to another physician on the same panel as of right.

• Any further changes may be made only by agreement of the parties or by order of the Board under Board Rule 200(b)(1).

• Any party may request a change in physician, and the Board may order a change in physician upon its own motion as well.

Change of Physician• The party seeking the change must make a good faith

effort to reach an agreement on the change before requesting an order from the Board.

• If the parties agree on a change of physician, a Form WC-200a should be completed by one party and signed by all parties before being filed with the Board.

• If an agreement cannot be reached, the party requesting the change must file a Form WC-200b specifying the reason for the requested change and the date that the change will be effective. – A party objecting to the request must file their objection on a

Form WC-200b within 15 days of service of the original request.


4/19/18

9

Change of Physician• Under Board Rule 200(b)(2), the party requesting/objecting to a change in physician

must set forth reasons why the change is or is not reasonably required to effect a

cure, give relief, or restore the employee to suitable employment

• Factors which may be considered in support of the request/objection may include, but

are not limited to, the following:

i. Proximity of physician's office to employee's residence;

ii. Accessibility of physician to employee;

iii. Excessive/redundant performance of medical procedures;

iv. Necessity for specialized medical care;

v. Language barrier;

vi. Referral by authorized physician;

vii. Noncompliance of physician with Board Rules and procedures;

viii. Panel of physicians;

ix. Duration of treatment without appreciable improvement;

x. Number of prior treating physicians;

xi. Prior requests for change of physician/treatment;

xii. Employee released to normal duty work by current authorized treating physician;

xiii. Current physician indicates nothing more to offer.

Reinstatement and Suspension of Benefits

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10

Offer of Suitable Employment• A two-pronged test is embodied in O.C.G.A. §

34-9-240, which provides that an employee may not refuse “suitable” employment unless the refusal is “justified.”

• “Suitable employment” may take many forms, and whether an employee’s refusal to return to work is justified is determined on a case-by-case basis.

Offer of Suitable Employment• The first prong is whether the job is suited to the

employee’s physical capacity, which the court in City of Adel v. Wise, 261 Ga. 53, 401 S.E.2d 522 (1991) explained “refers to the employee’s capacity or ability to perform work within his physical limitations or restrictions.”

• The second prong of the test is whether the refusal is justified, which the court in Wise noted must relate to the physical capacity or ability to perform the job, or to geographic factors, such as relocation or travel which would disrupt the employee’s life.


4/19/18

9

Change of Physician• Under Board Rule 200(b)(2), the party requesting/objecting to a change in physician

must set forth reasons why the change is or is not reasonably required to effect a

cure, give relief, or restore the employee to suitable employment

• Factors which may be considered in support of the request/objection may include, but

are not limited to, the following:

i. Proximity of physician's office to employee's residence;

ii. Accessibility of physician to employee;

iii. Excessive/redundant performance of medical procedures;

iv. Necessity for specialized medical care;

v. Language barrier;

vi. Referral by authorized physician;

vii. Noncompliance of physician with Board Rules and procedures;

viii. Panel of physicians;

ix. Duration of treatment without appreciable improvement;

x. Number of prior treating physicians;

xi. Prior requests for change of physician/treatment;

xii. Employee released to normal duty work by current authorized treating physician;

xiii. Current physician indicates nothing more to offer.


4/19/18

10

Offer of Suitable Employment• A two-pronged test is embodied in O.C.G.A. §

34-9-240, which provides that an employee may not refuse “suitable” employment unless the refusal is “justified.”

• “Suitable employment” may take many forms, and whether an employee’s refusal to return to work is justified is determined on a case-by-case basis.

Offer of Suitable Employment• The first prong is whether the job is suited to the

employee’s physical capacity, which the court in City of Adel v. Wise, 261 Ga. 53, 401 S.E.2d 522 (1991) explained “refers to the employee’s capacity or ability to perform work within his physical limitations or restrictions.”

• The second prong of the test is whether the refusal is justified, which the court in Wise noted must relate to the physical capacity or ability to perform the job, or to geographic factors, such as relocation or travel which would disrupt the employee’s life.


4/19/18

11

Light Duty Job Attempt• If the authorized treating physician

releases the employee to return to work with restrictions, the employer may present a written job description to the authorized treating physician under Board Rule 240.

• If the authorized treating physician signs the job description, the employer should offer the job within 60 days of the doctor’s release, and at least 10 days in advance of the date the employee is expected to return to work.

Light Duty Job Attempt• The job offer should be made by serving a completed Board Form

WC-240, detailing the date, time, and place to report to work, on the employee and his lawyer.

• If the employee is unable to perform the job duties for more than 15 working days, then weekly benefits should be immediately reinstated, and the employer still has the burden of proving that the employee is not entitled to continuing benefits. O.C.G.A. § 34-9-240(b)(1).

• If the employer fails to promptly reinstate benefits after a failed light duty job attempt, the employer may waive its defense of suitability of employment. See Technical College System of Georgia v. McGruder, 326 Ga. App 469, 756 S.E.2d 702 (2014).

4/19/18

12

Light Duty Job Attempt• The employee must attempt the job for

at least eight cumulative hours, or one scheduled work day, whichever is greater, to avoid unilateral suspension. – If the employee refuses to attempt the job,

the employer may suspend benefits unilaterally upon filing forms WC-2 and WC-240 with the Board.

– The burden then shifts to the employee to prove continuing entitlement to benefits. O.C.G.A. § 34-9-240(b)(2).

Interlocutory Orders


4/19/18

11

Light Duty Job Attempt• If the authorized treating physician

releases the employee to return to work with restrictions, the employer may present a written job description to the authorized treating physician under Board Rule 240.

• If the authorized treating physician signs the job description, the employer should offer the job within 60 days of the doctor’s release, and at least 10 days in advance of the date the employee is expected to return to work.

Light Duty Job Attempt• The job offer should be made by serving a completed Board Form

WC-240, detailing the date, time, and place to report to work, on the employee and his lawyer.

• If the employee is unable to perform the job duties for more than 15 working days, then weekly benefits should be immediately reinstated, and the employer still has the burden of proving that the employee is not entitled to continuing benefits. O.C.G.A. § 34-9-240(b)(1).

• If the employer fails to promptly reinstate benefits after a failed light duty job attempt, the employer may waive its defense of suitability of employment. See Technical College System of Georgia v. McGruder, 326 Ga. App 469, 756 S.E.2d 702 (2014).

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Light Duty Job Attempt• The employee must attempt the job for

at least eight cumulative hours, or one scheduled work day, whichever is greater, to avoid unilateral suspension. – If the employee refuses to attempt the job,

the employer may suspend benefits unilaterally upon filing forms WC-2 and WC-240 with the Board.

– The burden then shifts to the employee to prove continuing entitlement to benefits. O.C.G.A. § 34-9-240(b)(2).

Interlocutory Orders


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13

Unjustifiable Refusal of Light Duty Work

• An employer may request an interlocutory order suspending weekly benefits pending a hearing for an employee’s unjustifiable refusal to accept employment procured for him which is suitable to his capacity.

• The employer must file Form WC-102D, along with an affidavit from the employer setting forth that suitable employment has been offered to the employee as set forth in Board Rule 240(b) and that the offer is continuing, along with an analysis of the job.

Multiple Potential Employer/Insurers

• If there is a question regarding which of two or more employers/insurers is liable, the Board may issue an interlocutory order directing one of the employers/insurers to pay weekly benefits and medical expenses out to the claimant until the determination regarding liability can be made under Board Rule 102(D)(6).

• Reimbursements may be ordered thereafter if appropriate.

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Failure to Cooperate with Medical Treatment


• If the employee refuses to submit or in any way obstructs

an examination by the authorized treating physician, the

employee’s right to compensation “shall” be suspended

upon order of the Board, unless, in the opinion of the

Board, the circumstances justify the employee’s refusal.

See O.C.G.A. § 34-9-202(c).

• Benefits may not be suspended unilaterally. In order to

properly suspend benefits, the employer/insurer must file

a motion with the Board using form WC-102D.


4/19/18

13

Unjustifiable Refusal of Light Duty Work

• An employer may request an interlocutory order suspending weekly benefits pending a hearing for an employee’s unjustifiable refusal to accept employment procured for him which is suitable to his capacity.

• The employer must file Form WC-102D, along with an affidavit from the employer setting forth that suitable employment has been offered to the employee as set forth in Board Rule 240(b) and that the offer is continuing, along with an analysis of the job.

Multiple Potential Employer/Insurers

• If there is a question regarding which of two or more employers/insurers is liable, the Board may issue an interlocutory order directing one of the employers/insurers to pay weekly benefits and medical expenses out to the claimant until the determination regarding liability can be made under Board Rule 102(D)(6).

• Reimbursements may be ordered thereafter if appropriate.

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• If the employee refuses to submit or in any way obstructs

an examination by the authorized treating physician, the

employee’s right to compensation “shall” be suspended

upon order of the Board, unless, in the opinion of the

Board, the circumstances justify the employee’s refusal.

See O.C.G.A. § 34-9-202(c).

• Benefits may not be suspended unilaterally. In order to

properly suspend benefits, the employer/insurer must file

a motion with the Board using form WC-102D.


Petitions for Medical Treatment and Other Pre-Trial Motions

Honorable David K. Imahara State Board of Workers’ Compensation

Atlanta, Georgia

Stephen J. Graham Drew Eckl & Farnham, LLP

Atlanta, Georgia

Sarah E. Stottlemyer Stottlemyer & Associates, LLC

Atlanta, Georgia

1



1. Requests for Preauthorization of Medical Care

Although advance authorization for the medical treatment of an employee by an authorized treating physician is not required, some physicians may request preauthorization for treatment or tests. In that case, the physician may submit a Board Form WC-205 via e-mail or fax to the employer/insurer. The employer/insurer then has five business days to file a responsive Form WC-205 either authorizing or controverting the treatment. Neither the request nor the response is to be filed with the Board, unless otherwise requested. Board Rule 205(b)(4) mandates that failure of an employer/insurer to authorize or controvert a written request for preauthorization by an authorized treating physician may result in the waiver of any defenses to payment related to a compensable injury.

In the event that the employer/insurer files an initial refusal to authorize, then it shall, within 21 days of the receipt of the initial request, either authorize the requested treatment, or file a Form WC-3 controverting the requested treatment or testing and setting forth the grounds for controversion.

2. Petitions for Medical Treatment

As of July 1, 2017, the Workers’ Compensation Board amended Rule 205 to add subsection (c) authorizing use of the new form WC-PMT. This form was created to use when an employer/insurer has failed to respond to a request for authorization of treatment/testing by an authorized medical provider within five business days of the request. The employee and/or the employee’s attorney may file a WC-PMT, which acts as a request to the Board to issue a notice of a show cause telephonic conference before an administrative law judge within five business days. The purpose of the conference is for the employer/insurer to show cause why the treatment or testing at issue has not been authorized. Failure of a party to participate in the conference does not preclude a ruling by the judge.

In lieu of participation in the telephonic conference, the employer/insurer and/or the employer/insurer’s attorney may use this form to authorize or controvert the recommended treatment/testing. If the employer/insurer does this, the telephonic conference is automatically cancelled. Following the telephonic conference, the ALJ may issue an Interlocutory Order regarding the authorization of the treatment/testing at issue. If the ALJ determines that it should be authorized, the Order will require the employer/insurer provide written authorization to the medical provider. Any party may object to the Order by requesting a hearing within 20 days. The absence of a hearing request within that time will act as consent to payment for the treatment/testing.



Honorable David K. Imahara State Board of Workers’ Compensation

Atlanta, Georgia

Stephen J. Graham Drew Eckl & Farnham, LLP

Atlanta, Georgia

Sarah E. Stottlemyer Stottlemyer & Associates, LLC

Atlanta, Georgia

1



1. Requests for Preauthorization of Medical Care

Although advance authorization for the medical treatment of an employee by an authorized treating physician is not required, some physicians may request preauthorization for treatment or tests. In that case, the physician may submit a Board Form WC-205 via e-mail or fax to the employer/insurer. The employer/insurer then has five business days to file a responsive Form WC-205 either authorizing or controverting the treatment. Neither the request nor the response is to be filed with the Board, unless otherwise requested. Board Rule 205(b)(4) mandates that failure of an employer/insurer to authorize or controvert a written request for preauthorization by an authorized treating physician may result in the waiver of any defenses to payment related to a compensable injury.

In the event that the employer/insurer files an initial refusal to authorize, then it shall, within 21 days of the receipt of the initial request, either authorize the requested treatment, or file a Form WC-3 controverting the requested treatment or testing and setting forth the grounds for controversion.

2. Petitions for Medical Treatment

As of July 1, 2017, the Workers’ Compensation Board amended Rule 205 to add subsection (c) authorizing use of the new form WC-PMT. This form was created to use when an employer/insurer has failed to respond to a request for authorization of treatment/testing by an authorized medical provider within five business days of the request. The employee and/or the employee’s attorney may file a WC-PMT, which acts as a request to the Board to issue a notice of a show cause telephonic conference before an administrative law judge within five business days. The purpose of the conference is for the employer/insurer to show cause why the treatment or testing at issue has not been authorized. Failure of a party to participate in the conference does not preclude a ruling by the judge.

In lieu of participation in the telephonic conference, the employer/insurer and/or the employer/insurer’s attorney may use this form to authorize or controvert the recommended treatment/testing. If the employer/insurer does this, the telephonic conference is automatically cancelled. Following the telephonic conference, the ALJ may issue an Interlocutory Order regarding the authorization of the treatment/testing at issue. If the ALJ determines that it should be authorized, the Order will require the employer/insurer provide written authorization to the medical provider. Any party may object to the Order by requesting a hearing within 20 days. The absence of a hearing request within that time will act as consent to payment for the treatment/testing.


2

Discovery Motions

Under Board Rule 102(F)(1), prior to or subsequent to a request for hearing being filed in a claim, the parties are entitled to receive from each other, without cost, the documents specified in the Form WC-102 Request for Documents to Parties. This includes Board Forms, the employer’s panel of physicians, and employee wage records. These documents shall be provided within 30 days of the date of the certificate of service. Neither the request nor response shall be filed with the Board. Any party or attorney who fails to follow this procedure, and who is unable to show good cause for such failure, may be subject to civil penalties and/or assessed attorney’s fees.

Board Rule 102(F)(2) mandates that any other discovery to be conducted pursuant to the Civil Practice Act shall only be permitted after a hearing has been requested in the claim, or as otherwise specified in the rules, or by agreement of the attorneys or permitted by an Administrative Law Judge or the Board.

Under Board Rule 102(D), any motions or objections for which a specific Board Form does not exist are to be filed on a Form WC-102D. Rule 102(D)(2) additionally requires that prior to filing a motion, the moving party must confer with the opposing party in a good-faith effort to resolve the matter. If the matter cannot be resolved, Rule 102(D)(3) states that a party objecting to a motion must respond on a Form WC-102D, and file it with the Board within 15 days of the date of the certificate of service on the request. It must also serve a copy of the objection on all counsel and unrepresented parties.

Change of Physician

Pursuant to O.C.G.A. § 34-9-201(b)(1), an employee may make one change from a physician on the employer’s panel of physicians to another physician on the same panel as of right. Any further changes may be made only by agreement of the parties or by order of the Board under Board Rule 200(b)(1). Any party may request a change in physician, and the Board may order a change in physician upon its own motion as well.

If there has been no hearing requested, the party seeking the change must make a good faith effort to reach an agreement on the change before requesting an order from the Board. If the parties agree on a change of physician, a Form WC-200a should be completed by one party and signed by all parties before being filed with the Board. If an agreement cannot be reached, the party requesting the change must file a Form WC-200b specifying the reason for the requested change and the date that the change will be effective. A party objecting to the request must file their objection on a Form WC-200b within 15 days of service of the original request. In cases that have been designated as “medical only,” the requesting party must file a Form WC-14 or WC-1 along with the WC-200b for the Board to process the request.


1. Offer of Suitable Employment

3

Pursuant to O.C.G.A. § 9-34-240, “[i]f an injured employee refuses employment procured for him or her and suitable to his or her capacity, such employee shall not be entitled to any compensation, except benefits pursuant to Code Section 34-9-261, at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified. “Suitable employment” may take many forms, and whether an employee’s refusal to return to work is justified is determined by case-by-case analysis.

A two-pronged test is embodied in O.C.G.A. § 34-9-240. The first prong is whether the job is suited to the employee’s physical capacity, which the court in City of Adel v. Wise, 261 Ga. 53, 401 S.E.2d 522 (1991) explained “refers to the employee’s capacity or ability to perform work within his physical limitations or restrictions.” The mere tender of a light duty job is not sufficient to authorize the suspension of total temporary disability benefits without evidence that the job is suitable to the employee’s impaired condition. Garrard v. Pitts Plumbing Co., 163 Ga. App 457, 294 S.E.2d 658 (1982). Further, even if medical testimony addresses the suitability of the employment offered, the Board retains broad discretion to believe lay testimony, particularly that of the injured employee. Fulton-Dekalb Hosp. Auth. v. Hadley, 174 Ga. App. 503, 330 S.E.2d 432 (1985). The Board also has the discretion to believe an expert based on the expert’s personal contact with the employee. Korner v. Educ. Mgmt. Corp., 281 Ga. App. 322, 635 S.E.2d 892 (2006) (finding that employer/insurer’s expert was not persuasive because he had not spoken with the employee, did not know of certain details of the injury, and identified as suitable work jobs that required certain background and experience that the employee did not possess).

The second prong of the test is whether the refusal is justified. Although the Board has wide discretion to determine what is justified, the court in Wise noted that the “justification” must relate to the physical capacity or ability to perform the job, or to geographic factors, such as relocation or travel which would disrupt the employee’s life. For example, a nurse could refuse a typing job, even if physically capable of performing the job, if the nurse lacks the skill to perform the job. An employee is not justified in refusing a job because of shift assignment or because the job is non-union, but may be justified in refusing a job if it offers no challenge and no opportunities for advancement. Clark v. Georgia Craft Co., 178 Ga. App. 884, 345 S.E.2d 61 (1986).

In 1994, the legislature amended O.C.G.A. § 34-9-240 to provide for a trial return to work. If the authorized treating physician releases the employee to return to work with restrictions, the employer may present a written job description to the authorized treating physician (and to the employee’s lawyer at the same time it is presented to the doctor). Board Rule 240. If the authorized treating physician signs the job description, the employer should offer the job within 60 days of the doctor’s release. The job should be offered at least 10 days in advance, by serving a completed Board Form WC-240, which details the date, time, and place to report to work, on the employee and his lawyer. If the employee is unable to perform the job duties for more than 15 working days, then weekly benefits should be immediately reinstated, and the employer still has the burden of proving that the employee is not entitled to continuing benefits. O.C.G.A. § 34-9-240(b)(1). If the employer fails to promptly reinstate benefits after a failed light duty job attempt, the employer may waive its defense of suitability of employment. See


2

Discovery Motions

Under Board Rule 102(F)(1), prior to or subsequent to a request for hearing being filed in a claim, the parties are entitled to receive from each other, without cost, the documents specified in the Form WC-102 Request for Documents to Parties. This includes Board Forms, the employer’s panel of physicians, and employee wage records. These documents shall be provided within 30 days of the date of the certificate of service. Neither the request nor response shall be filed with the Board. Any party or attorney who fails to follow this procedure, and who is unable to show good cause for such failure, may be subject to civil penalties and/or assessed attorney’s fees.

Board Rule 102(F)(2) mandates that any other discovery to be conducted pursuant to the Civil Practice Act shall only be permitted after a hearing has been requested in the claim, or as otherwise specified in the rules, or by agreement of the attorneys or permitted by an Administrative Law Judge or the Board.

Under Board Rule 102(D), any motions or objections for which a specific Board Form does not exist are to be filed on a Form WC-102D. Rule 102(D)(2) additionally requires that prior to filing a motion, the moving party must confer with the opposing party in a good-faith effort to resolve the matter. If the matter cannot be resolved, Rule 102(D)(3) states that a party objecting to a motion must respond on a Form WC-102D, and file it with the Board within 15 days of the date of the certificate of service on the request. It must also serve a copy of the objection on all counsel and unrepresented parties.

Change of Physician

Pursuant to O.C.G.A. § 34-9-201(b)(1), an employee may make one change from a physician on the employer’s panel of physicians to another physician on the same panel as of right. Any further changes may be made only by agreement of the parties or by order of the Board under Board Rule 200(b)(1). Any party may request a change in physician, and the Board may order a change in physician upon its own motion as well.

If there has been no hearing requested, the party seeking the change must make a good faith effort to reach an agreement on the change before requesting an order from the Board. If the parties agree on a change of physician, a Form WC-200a should be completed by one party and signed by all parties before being filed with the Board. If an agreement cannot be reached, the party requesting the change must file a Form WC-200b specifying the reason for the requested change and the date that the change will be effective. A party objecting to the request must file their objection on a Form WC-200b within 15 days of service of the original request. In cases that have been designated as “medical only,” the requesting party must file a Form WC-14 or WC-1 along with the WC-200b for the Board to process the request.


1. Offer of Suitable Employment

3

Pursuant to O.C.G.A. § 9-34-240, “[i]f an injured employee refuses employment procured for him or her and suitable to his or her capacity, such employee shall not be entitled to any compensation, except benefits pursuant to Code Section 34-9-261, at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified. “Suitable employment” may take many forms, and whether an employee’s refusal to return to work is justified is determined by case-by-case analysis.

A two-pronged test is embodied in O.C.G.A. § 34-9-240. The first prong is whether the job is suited to the employee’s physical capacity, which the court in City of Adel v. Wise, 261 Ga. 53, 401 S.E.2d 522 (1991) explained “refers to the employee’s capacity or ability to perform work within his physical limitations or restrictions.” The mere tender of a light duty job is not sufficient to authorize the suspension of total temporary disability benefits without evidence that the job is suitable to the employee’s impaired condition. Garrard v. Pitts Plumbing Co., 163 Ga. App 457, 294 S.E.2d 658 (1982). Further, even if medical testimony addresses the suitability of the employment offered, the Board retains broad discretion to believe lay testimony, particularly that of the injured employee. Fulton-Dekalb Hosp. Auth. v. Hadley, 174 Ga. App. 503, 330 S.E.2d 432 (1985). The Board also has the discretion to believe an expert based on the expert’s personal contact with the employee. Korner v. Educ. Mgmt. Corp., 281 Ga. App. 322, 635 S.E.2d 892 (2006) (finding that employer/insurer’s expert was not persuasive because he had not spoken with the employee, did not know of certain details of the injury, and identified as suitable work jobs that required certain background and experience that the employee did not possess).

The second prong of the test is whether the refusal is justified. Although the Board has wide discretion to determine what is justified, the court in Wise noted that the “justification” must relate to the physical capacity or ability to perform the job, or to geographic factors, such as relocation or travel which would disrupt the employee’s life. For example, a nurse could refuse a typing job, even if physically capable of performing the job, if the nurse lacks the skill to perform the job. An employee is not justified in refusing a job because of shift assignment or because the job is non-union, but may be justified in refusing a job if it offers no challenge and no opportunities for advancement. Clark v. Georgia Craft Co., 178 Ga. App. 884, 345 S.E.2d 61 (1986).

In 1994, the legislature amended O.C.G.A. § 34-9-240 to provide for a trial return to work. If the authorized treating physician releases the employee to return to work with restrictions, the employer may present a written job description to the authorized treating physician (and to the employee’s lawyer at the same time it is presented to the doctor). Board Rule 240. If the authorized treating physician signs the job description, the employer should offer the job within 60 days of the doctor’s release. The job should be offered at least 10 days in advance, by serving a completed Board Form WC-240, which details the date, time, and place to report to work, on the employee and his lawyer. If the employee is unable to perform the job duties for more than 15 working days, then weekly benefits should be immediately reinstated, and the employer still has the burden of proving that the employee is not entitled to continuing benefits. O.C.G.A. § 34-9-240(b)(1). If the employer fails to promptly reinstate benefits after a failed light duty job attempt, the employer may waive its defense of suitability of employment. See


4

Technical College System of Georgia v. McGruder, 326 Ga. App 469, 756 S.E.2d 702 (2014). The proper approach is for the employer to immediately reinstate benefits and seek a hearing to recover reimbursements.

In 2013, the legislature modified and enhanced the minimum required time that the claimant must actually attempt the proffered job. The revised requirement calls for the employee to attempt the job for at least eight cumulative hours, or one scheduled work day, whichever is greater, to avoid unilateral suspension. The reasoning behind this amendment was to prevent brief returns to work where an employee could avoid suspension by attempting the proffered job for a nominal period of time and thereby avoid an allegation that he/she refused the proffered job outright.

If the employee refuses even to attempt the job at all, then the employer may suspend benefits unilaterally upon filing forms WC-2 and WC-240 with the Board, together with supporting documentation showing the release to return to work with restrictions by the authorized treating physician, the tender of a suitable job within these restrictions, and a statement that the employee did not attempt the job. Under the latter circumstances, the burden shifts to the employee to prove continuing entitlement to benefits. O.C.G.A. § 34-9-240(b)(2).

2. Interlocutory Orders

An employer may request an interlocutory order suspending weekly benefits pending a hearing for an employee’s unjustifiable refusal to accept employment procured for him which is suitable to his capacity. Board Rule 240(e). To do so, the employer must file Form WC-102D, along with an affidavit from the employer setting forth that suitable employment has been offered to the employee as set forth in Board Rule 240(b) and that the offer is continuing, along with an analysis of the job. Board Rule 240(e). The employee must have been examined by the authorized treating physician within 60 days prior to the request for the interlocutory order, and the authorized treating physician must have approved the job offered by the employer. Before or at the time the interlocutory order is requested, a hearing also must be requesting by filing Form WC-14.

Another circumstance under which an interlocutory order may be requested is if there is a question regarding which of two or more employers/insurers is liable. Under Board Rule 102(D)(6), which the ALJ or the Board may issue an interlocutory order directing one of the employers/insurers to pay weekly benefits and medical expenses out to the claimant until the determination regarding liability can be made. Reimbursements may be ordered thereafter if appropriate.

3. Failure to Cooperate with Medical Treatment

Under O.C.G.A. § 34-9-200(c), the employer/insurer may ask the Board to suspend the employee’s weekly benefits for refusal of the employee to submit to medical care. This suspension of benefits may not be accomplished unilaterally, however. To properly suspend benefits, the employer/insurer must file a motion with the Board requesting the benefits be suspended. The Board may order suspension or reduction of

5

benefits unless, in the opinion of the Board, the circumstances justify the refusal. The Board may require recommendations from a panel of specialists in determining whether the suspension or reduction of compensation is justified.

If the employee refuses to submit or in any way obstructs an examination by the authorized treating physician, the employee’s right to compensation shall be suspended upon order of the Board, and no compensation shall be payable for the period of suspension unless, in the opinion of the Board, the circumstances justify the employee’s refusal. See O.C.G.A. § 34-9-202(c).


4

Technical College System of Georgia v. McGruder, 326 Ga. App 469, 756 S.E.2d 702 (2014). The proper approach is for the employer to immediately reinstate benefits and seek a hearing to recover reimbursements.

In 2013, the legislature modified and enhanced the minimum required time that the claimant must actually attempt the proffered job. The revised requirement calls for the employee to attempt the job for at least eight cumulative hours, or one scheduled work day, whichever is greater, to avoid unilateral suspension. The reasoning behind this amendment was to prevent brief returns to work where an employee could avoid suspension by attempting the proffered job for a nominal period of time and thereby avoid an allegation that he/she refused the proffered job outright.

If the employee refuses even to attempt the job at all, then the employer may suspend benefits unilaterally upon filing forms WC-2 and WC-240 with the Board, together with supporting documentation showing the release to return to work with restrictions by the authorized treating physician, the tender of a suitable job within these restrictions, and a statement that the employee did not attempt the job. Under the latter circumstances, the burden shifts to the employee to prove continuing entitlement to benefits. O.C.G.A. § 34-9-240(b)(2).

2. Interlocutory Orders

An employer may request an interlocutory order suspending weekly benefits pending a hearing for an employee’s unjustifiable refusal to accept employment procured for him which is suitable to his capacity. Board Rule 240(e). To do so, the employer must file Form WC-102D, along with an affidavit from the employer setting forth that suitable employment has been offered to the employee as set forth in Board Rule 240(b) and that the offer is continuing, along with an analysis of the job. Board Rule 240(e). The employee must have been examined by the authorized treating physician within 60 days prior to the request for the interlocutory order, and the authorized treating physician must have approved the job offered by the employer. Before or at the time the interlocutory order is requested, a hearing also must be requesting by filing Form WC-14.

Another circumstance under which an interlocutory order may be requested is if there is a question regarding which of two or more employers/insurers is liable. Under Board Rule 102(D)(6), which the ALJ or the Board may issue an interlocutory order directing one of the employers/insurers to pay weekly benefits and medical expenses out to the claimant until the determination regarding liability can be made. Reimbursements may be ordered thereafter if appropriate.

3. Failure to Cooperate with Medical Treatment

Under O.C.G.A. § 34-9-200(c), the employer/insurer may ask the Board to suspend the employee’s weekly benefits for refusal of the employee to submit to medical care. This suspension of benefits may not be accomplished unilaterally, however. To properly suspend benefits, the employer/insurer must file a motion with the Board requesting the benefits be suspended. The Board may order suspension or reduction of

5

benefits unless, in the opinion of the Board, the circumstances justify the refusal. The Board may require recommendations from a panel of specialists in determining whether the suspension or reduction of compensation is justified.

If the employee refuses to submit or in any way obstructs an examination by the authorized treating physician, the employee’s right to compensation shall be suspended upon order of the Board, and no compensation shall be payable for the period of suspension unless, in the opinion of the Board, the circumstances justify the employee’s refusal. See O.C.G.A. § 34-9-202(c).


Appendix

APPENDIX

ICLE BOARD

Name Position Term Expires

Member 2019

Member 2019

Member 2018

Member 2019

Member 2018

Member 2020

Member 2018

Member 2020

2019

2019

2019

2019

2018

Carol V. Clark

Harold T. Daniel, Jr.

Laverne Lewis Gaskins

Allegra J. Lawrence

C. James McCallar, Jr.

Jennifer Campbell Mock

Patrick T. O'Connor

Kenneth L. Shigley

A. James Elliott

Buddy M. Mears

Dean Daisy Hurst Floyd

Carol Ellis Morgan

Hon. Harold David Melton

Jeffrey Reese Davis

Tangela Sarita King

2018

Appendix1 of 2

Emory University

John Marshall

Mercer University

University of Georgia

Liaison

Staff Liaison

Staff Liaison 2018

Cassady Vaughn Brewer Member 2019

ICLE BOARD

Name Position Term Expires

Member 2019

Member 2019

Member 2018

Member 2019

Member 2018

Member 2020

Member 2018

Member 2020

2019

2019

2019

2019

2018

Carol V. Clark

Harold T. Daniel, Jr.

Laverne Lewis Gaskins

Allegra J. Lawrence

C. James McCallar, Jr.

Jennifer Campbell Mock

Patrick T. O'Connor

Kenneth L. Shigley

A. James Elliott

Buddy M. Mears

Dean Daisy Hurst Floyd

Carol Ellis Morgan

Hon. Harold David Melton

Jeffrey Reese Davis

Tangela Sarita King

2018

Appendix1 of 2

Emory University

John Marshall

Mercer University

University of Georgia

Liaison

Staff Liaison

Staff Liaison 2018

Cassady Vaughn Brewer Member 2019

Appendix2 of 2

GEORGIA MANDATORY CLE FACT SHEET

Every “active” attorney in Georgia must attend 12 “approved” CLE hours of instruction annually, with one of the CLE hours being in the area of legal ethics and one of the CLE hours being in the area of professionalism. Furthermore, any attorney who appears as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case in 1990 or in any subsequent calendar year, must complete for such year a minimum of three hours of continuing legal education activity in the area of trial practice. These trial practice hours are included in, and not in addition to, the 12 hour requirement. ICLE is an “accredited” provider of “approved” CLE instruction.

Excess creditable CLE hours (i.e., over 12) earned in one CY may be carried over into the next succeeding CY. Excess ethics and professionalism credits may be carried over for two years. Excess trial practice hours may be carried over for one year.

A portion of your ICLE name tag is your ATTENDANCE CONFIRMATION which indicates the program name, date, amount paid, CLE hours (including ethics, professionalism and trial practice, if any) and should be retained for your personal CLE and tax records. DO NOT SEND THIS CARD TO THE COMMISSION!

ICLE will electronically transmit computerized CLE attendance records directly into the Offi cial State Bar Membership computer records for recording on the attendee’s Bar record. Attendees at ICLE programs need do nothing more as their attendance will be recorded in their Bar record.

Should you need CLE credit in a state other than Georgia, please inquire as to the procedure at the registration desk. ICLE does not guarantee credit in any state other than Georgia.

If you have any questions concerning attendance credit at ICLE seminars, please call: 678-529-6688

WORKERS’ COMPENSATION

FOR THE GENERAL PRACTITIONER

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