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The Georgia Legislative Session had no major changes to report for our system in this session. This should generally be received as great news, considering the trend in recent years to annual increases in our TTD and TPD caps.
Although not directly related to Workers’ Compensation HB 451 presents a non WC and private insurance solution to PTSD benefits for first responders, and EMT’s. This topic has been discussed for the last two sessions and originally was being proposed as an amendment to our WC code but sure and steady work by the Board has this issue positioned to fall into a non-WC coverage insurance program. To continue with a theme of advancing protections for first -responders, SB 371 would provide additional compensation out of the State Indemnification Fund for public safety/first responders as a gap between workers' compensation benefits and their current wage income.
Beyond both of those matters which were near misses from a WC perspective, it remains business as usual with no significant changes to report!
Our Legislative Session for 2024-2025 has kicked off and I am pleased to report that, at this time, there are no proposed changes that currently impact our WC system. In Georgia, our Advisory Council is generally the body that presents any proposed uniform changes to the Legislature but this year there are no changes being presented. Of course, each session presents the possibility for surprises, and we will keep you informed of those. For now, however, it appears that smooth sailing lies ahead from Georgia’s employers regarding Statutory changes.
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This year’s legislative session brought about little substantive change in our code. One anticipated change that has gone into effect are newly established caps for TTD, TPD, PPD and the maximums for Spousal dependency benefits where the surviving spouse is the sole primary beneficiary. The new established caps do apply only to dates of accident on and after July 1, 2022.
The new maximum rates for indemnity are as follows:
Also effective July 1, 2022 is a change in the maximum benefit payable to a surviving spouse with no other dependents. This figure goes from a maximum cap of $270,000.00 to $290,000.00 for dates of accident on or after July 1.
Effective July 1, 2022, there were also slight modifications to Board Rules 203 and 205. The Board approved a new peer review organization in 2021. Claims Eval is the Board’s approved peer review organization and reviews disputes between medical providers and employers and insurers regarding medical charges. Some changes were made to the process and procedures for filing for peer review.
A change was also made to the rule to clarify that all medical treatment, items, and services covered by O.C.G.A. §34-9-200 can be included in the PMT process. This latter change will be very helpful to the already successful PMT program that allows for requests and denials of certain medical procedures, items and services be done on an expedited basis.
Another note worth mentioning is the firm position that our Board continues to take on proper filing of Board forms in active claims. Adjusters and other claims handlers will be held to a high standards as it relates to required filings and, when the opportunity arises, our Administrative Law Judges remind the section of this point. Attorney’s fees and civil penalties will continue to be assessed for non-compliance issues and we should all consider ourselves on notice.
Finally, On October 19, 2021, the first Georgia Workers’ Compensation Claim involving Covid-19 in the workplace was litigated.. The claim was brought by a widower whose deceased spouse worked as a records clerk for a county jail. The ALJ issue an Award finding that in this particular claim, Covid-19 was not a compensable injury or disease under the Georgia statute. Interestingly, the claimant’s counsel argued that Covid-19 was not an occupational disease but was rather an injury leading to disease and brought on by injurious exposure. The employer’s defense revolved around the deceased’s potential community exposure, as evidenced by bank records, as well as the extensive measures taken by the County to prevent the spread of Covid-19. Although the finding was in favor of the employer in this case, the Award left open the possibility that certain jobs or positions might lend a different result, and that is important to remember, especially for our first responder and health care clients who may be facing similar claims.
2021 has been a year of contrast in comparison to its predecessor. Our Board did continue with limited and restricted business at the beginning of 2021 and as we all adjusted to the use of “zoom” for depositions and hearings, court events and proceedings again gained some badly needed momentum. At present, in-person hearings have been reinstated with some continued restrictions and Zoom hearings and mediations have continued to play major roles in the handling of caseloads. To their credit, the Georgia SBWC has done an admirable job in maintaining vital safety standards while remaining open. Stunningly, claims between 2019 and 2020 were down only 3%, which is evidence of the efforts expended by all involved. As of 2021, our new Chairmen Ben Vinson, reported that as of 2021, legal proceedings with hearings, mediations and PMT calls are all up over 30% and that there are no case backlogs to report internally. Certainly, we expect for that trend to continue as we hopefully progress to a status quo similar to 2019.
From a legislative and revised Board Rule changes perspective, there is nothing to report. Although some proposals were reported, no new legislation emerged from the 2021 session that would impact our 34-9 statutes. Board Rule changes were limited to revisions to very nominal and minimal issues that require no further comment here. In sum, all smooth sailing to report on the legal front.
2021 has also brought about little in the way of reported caselaw of interest. In Baxter v. Tracie McCormick, 2021 WL 2701286 (July 1, 2021), the Georgia Court of Appeals provided further guidance on the Cap on Dependency benefits as referenced in O.C.G.A. 34-9-265. In Baxter, the insurer suspended benefits due to reaching the cap of $150,000.00 in payout. At the time of death, the deceased left a surviving spouse but no other minor children or other dependents. Baxter argued that her mother-in-law was a partial dependent and that this status should invalidate the cap in that regard. The Court of Appeals did not agree, finding that the mother-in-law was a partial dependent and could only receive dependency benefits if there were no persons wholly dependent. Of course, this finding further confirmed the long-standing rule that partial dependents may only recover in the absence of those that are wholly dependent.
In Sunbelt Plastic Extrusions Inc. et al. v. Paguia, A21A0867, Court of Appeals of Georgia (August 19, 2021), further guidance on the application of the change in condition two-year statute of limitations was provided. In Sunbelt, the Claimant was paid TTD through November 29, 201 and filed a WC 14/Request for Catastrophic Designation on November 20, 2018. The employer asserted a 34-9-104 Statute of limitations defense in that the last payment of TTD was “actually made” on November 15, 2016 and that the WC 14 was therefore filed after two years from that date. This issue had been previously addressed by the Court of Appeals in finding that the critical date to be determined was when the last payment was ‘mailed’ to the recipient. Unfortunately for the insurer, the evidence provided through adjuster’s testimony was not certain enough to prove by a preponderance of the evidence that the last payment was “actually made” on November 15, 2016. It was the adjusters opinion that this was the date of mailing but further confirmed to lacking certainty of that fact. Moreover, in denying the application of the Statute of Limitations, the Court of Appeals further affirmed the Board’s finding that the underlying claim was, in fact, Catastrophic. The lesson for employers and insurers is to fully document the date that TTD payments are “actually made” with as much certainty as possible.
Unfortunately, this newsletter does not contain good news for Georgia’s employers and Insurers. The Supreme Court has dealt a final blow to the scheduled rest break defense, leaving it essentially ineffective absent the most narrow of circumstances.
As is always the case, prepared employers are ever-adapting to changing conditions within our comp system and this ruling should cause us to rethink the manner in which we handle employee breaks and “free time”.
Casey B. Foreman
Levy, Sibley, Foreman & Speir, LLC
cforeman@lsfslaw.com
(866) 995-8663
UPDATE: The Families First Coronavirus Response Act for Employers
Nathan C. Levy - GEORGIA
Levy, Sibley, Foreman & Speir, LLC
(866) 995-8663
www.lsfslaw.com