by Nathaniel Hofman, Esq.

One of the more interactive panels involved defense and claimant attorneys discussing aspects of the law each side would change if they could. In a nutshell, attorneys for claimants want the compensation rate increased and to make it more difficult to decrease those benefits once they are started. Attorneys for employers and insurers want to be able to investigate claims thoroughly and have a more realistic option to recover money when a claimant gets a settlement from a third party claim.

Defense Side

Create a more efficient Board Tracking Number (“BTN”)

The largest criticism of the BTN made by defense attorneys is that it has become a way for claimants to prevent effective investigation into prior workers compensation claims. The BTN was introduced as a way to identify workers within the system who did not have Social Security numbers. Both sides of the bar ultimately agreed that one way to improve the system would be to have one BTN per claimant, not one BTN per claim.

Georgia is not “employer friendly” in regards to subrogation claims

Under the current statutory scheme, a Georgia employer has to show that a claimant has been fully and completely compensated prior to recovering on their lien. See O.C.G.A. § 34-9-11.1(b). If that impossible hurdle can be reached, an employer is entitled to recover benefits paid, but there is no consideration for future benefits if the claim is pending and ongoing payments are issued. Georgia appellate decisions make it clear that proving full and complete compensation is a very expensive and often fruitless undertaking for small businesses and employers.

Claimant’s Side

Compensation rate increases should be tied to a cost of living index

The current workers compensation rate does not adjust to reflect changes in the cost of living. Georgia currently has the second lowest compensation rate in the nation, with only Mississippi paying less per week. The statewide average weekly wage for Georgia in 2016 was $975.00, which would otherwise result in a compensation rate of $650.00, but the current maximum compensation rate for Georgia is $575.00. Claimants’ attorneys are again expected to press the legislature for an increase in January 2018.

The 104 reduction from TTD to TPD should require an offer of suitable light duty work

Claimants’ attorneys are banding together to seek to convince the legislature that an employer should not get the benefit of a reduction pursuant to O.C.G.A. § 34-9-104 unless they also offer the claimant a light duty job. Currently, payment can be changed from the maximum TTD rate ($575) to the maximum TPD rate ($383) after 52 consecutive weeks of light duty restrictions or 78 aggregate weeks, but the reduction can occur without Board approval and is not tied to an offer to return to light duty work. Supporters argue that employers would rather hire new, healthy employees than offer light duty work to a claimant. They contend it is particularly unfair when employers could make accommodations but refuse to do so.

Our Take

Regarding the WC-104 recommendation, we contend this argument appears to be confusing O.C.G.A. § 34-9-104 with O.C.G.A. § 34-9-240, which addresses light duty job offers. The whole point of a 104 reduction is to push injured workers to return to work, and if an employer could offer suitable light duty work, they likely would do so before paying benefits for a whole year, so this argument is not likely to be successful at the legislature. As always, we will monitor any proposals from the Executive Committee and the legislative session when it starts early next year, so that we can let you know whether these or any other changes are likely to be made.