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Georgia Workers' Compensation

Closing Your Most Difficult Claims
in a
Quick Efficient Manner

Solutions which will keep
even the atypical claimant at work

William N. Anderson
Hamilton, Westby, Antonowich & Anderson, L.L.C.

This paper was written and presented by Mr. Anderson in May 1998 as part of a workers' compensation seminar offered by the Council on Education in Management. The paper's topic was provided by the Council and was presented along with a forty-five minute speech. The seminar is designed for employers, insurers, self-insureds and anyone involved with the management of workers' compensation claims. If you would like to obtain more information on this seminar contact the Council or Mr. Anderson.

I. Introduction

Difficult cases present unique fact situations and the best method of handling them may not always be the same. This paper is intended to provide an Employer with steps to be taken before a claim is made which will prove beneficial later, as well as tools which are available to the Employer to help manage a claim once it is filed.

II. Steps to be Taken Before a Claim is Made

A. Posted Panel Of Physicians

The first line of defense and proper claims management in any workers' compensation case is for the Employer to have a valid posted panel of physicians and to have complied with the requirements of explaining the panel. Pursuant to O.C.G.A. § 34-9-201, an Employer may satisfy the requirements of having a proper posted panel of physicians in one of three (3) manners.

An Employer may have a "traditional" panel of physicians which must contain at least four (4) physicians or professional associations or corporations of physicians who are "reasonably accessible" to the employees. One physician must be an orthopedic surgeon and not more than two (2) of the providers may be industrial clinics. (O.C.G.A. § 34-9-201(b)(1)) The traditional panel may have more than four (4) physicians and may include other specialities. The panel must contain one minority physician. A minority physician is defined by the Workers' Compensation Act as " . . . a group which has been subjected to prejudice based on race, color, sex, handicap or national origin, including, but not limited to, Black Americans, Hispanic Americans, Native Americans or Asian Americans." (Board Rule 201) It should be noted that failure to include a minority physician on a panel does not automatically render the panel invalid and the State Board has reserved the right to grant exceptions in their sole discretion. These exceptions should be obtained prior to an issue being raised regarding the panel and an exception granted by the State Board must be posted with the panel of physicians. (Id.)

An Employer may also satisfy the requirements of having a posted panel of physicians by having what is referred to as the "Conformed Panel of Physicians." The conformed panel of physicians must include a minimum of ten (10) physicians, or professional associations which are reasonably accessible to the employees. In addition to having an orthopedic surgeon, the conformed panel must also contain a general surgeon and a chiropractor. This panel must also include a minority physician as defined above. (Id.)

Finally, an Employer may satisfy the requirements of having a posted panel by contracting with a managed care organization which is certified by the State Board of Workers' Compensation. Medical services will be provided under this panel pursuant to the contractual agreement between the Employer and the managed care organization. This contractual agreement must be reviewed and certified by the State Board. A managed care organization is defined by the State Board as being " . . . a plan certified by the Board which provides for the delivery and management of treatment to injured employees under the Georgia Workers' Compensation Act." (O.C.G.A. §§ 34-9-201; 34-9-208; Board Rule 201). Employers who utilize a managed care organization panel must place employees on notice that the Employer has enrolled with a specific managed care organization, the effective date of the contract, the geographical services offered (by county), the address and phone number of the administrator for the employer and/or the managed care organization who can answer any questions which may be raised and must also contain a toll free 24 hour telephone number of the managed care plan which can help answer questions of injured workers. (Board Rule 201).

In addition to having a valid traditional panel, a conformed panel, or a managed care organization list, an Employer must also take all reasonable measures to ensure that employees understand the function of the panel and their right to seek services from the panel for work-related injuries and must provide "appropriate assistance" in contacting the medical providers. (O.C.G.A. § 34-9-201).

Having a valid posted panel of physicians or an other appropriate panel is a vital starting point for all workers compensation claims from an Employer's perspective. Once an employee has incurred a work related injury, so long as the employer has met the panel and notice requirements, the Employer maintains control over the injured workers' medical treatment. In general terms, an injured worker must choose a physician from one of the panels and may also have one free change of physician within the panel at the employee's discretion. Any further change of physician must be by agreement of the parties or by an order from the State Board of Workers' Compensation. If an Employer fails to comply with the statutory requirements of having a panel or with the notice requirements, or if the injured worker's claim is controverted, then the Employer loses the right to control the medical treatment. As medical expenses are often the greatest area of exposure in workers' compensation cases and directly impact the length of disability of an injured worker, maintaining control over the medical treatment is essential for an Employer.

Common issues which arise in litigated workers' compensation cases are whether an Employer had a valid panel, was it posted and has the employee been properly instructed on its use. A panel should be posted in areas easily assessable to all employees and where necessary in more than one location. A system which has proven effective in proving knowledge by an employee of a panel and its use is to have the employee sign a copy of the panel and instructions regarding the panel at the time of hire or during orientation. This signed copy should be maintained in the employee's personnel file. Should it become necessary, this document may be used in court to prove the employee's knowledge of the panel and its proper use.

As important as the panel itself are the physicians selected for the panel. Because the posted panel is such a fundamental element of every workers' compensation case, appropriate time and research should be expended in choosing physicians who will compile the Employer's panel. The Employer should take time to know the providers before they are placed on the panel. Not all medical providers accept workers' compensation cases, and as such, this information should be verified with each provider. In addition, the accessibility of the provider to both the Employer and to the employee should be considered. An open line of communication between the Employer and the medical provider is of great benefit in a workers' compensation case. It is important to verify that a medical provider will be willing to discuss an injured worker's condition and progress with the Employer. In addition, it should be determined whether the medical provider will be willing to review written or videotaped light duty job descriptions in order determine whether they are appropriate to an injured worker's limitations. It may be of interest to the Employer to determine whether the medical provider has hours which will not directly interfere with an employee's work schedule. In the end, an Employer should strive to provide physicians to its workers who will provide excellent medical treatment and who will also encourage an injured worker to return to work in a full or light duty capacity as soon as possible. Not obtaining proper medical treatment for an injured worker will inevitably lead to greater medical and indemnity expenses. Finally, time should be taken by the Employer to make sure the authorized physician understands the Workers' Compensation Act and how it affects treatment and referrals.

B. Modified/Light Duty Work Policy

One of the best methods of helping to prevent fraudulent workers' compensation claims and one which helps return legitimately injured workers to the work force as soon as possible is for an Employer to have a modified or light duty work policy. Specifically, whenever feasible, an Employer should be willing to offer modify work to workers' who have been injured on the job. Depending upon the Employer, this may be a position which already exists but meets the restrictions placed upon an injured worker by the authorized treating physician or it may be a position which an Employer creates, on a temporary basis, for a specific injured worker. Not only should the Employer have such a program in place, the program should be well publicizied to its employees. If an employee is considering fabricating a work injury in an effort to avoid working, the fact that the Employer has a light duty policy will work as a deterrent to that employee as he or she will have to continue to work. In addition, for legitimately injured workers, a light duty program allows that person to return to the work force as soon as possible. Generally, this helps to limit or avoid feelings of worthlessness which injured workers often have after being out of work for a long period of time.

A light duty work policy will help limit an Employer's exposure for weekly indemnity benefits. Currently, for a worker who is injured on or after July 1, 1997, the maximum amount of weekly benefit payable to that injured worker is $325.00 per week. These temporary total disability income benefits have a 400 week maximum payout from the date of injury so long as the case is not catastrophic. (O.C.G.A. § 34-9-261). However, if an injured worker is returned to the work force in a light duty capacity, then that worker is only entitled to temporary partial disability income benefits, which, for a worker injured on or after July 1, 1997, has a maximum weekly benefit of $216.67 per week. Also, the 400 week cap is reduced to 350 weeks from the date of injury for a worker receiving temporary partial disability benefits. As such, an Employer can immediately reduce their weekly income benefit exposure, as well as reducing the long term exposure by 50 weeks. (O.C.G.A. § 34-9-262).

In order to have a successful light duty program, an Employer must have access to the authorized treating physician. That physician must be willing to review and approve written or video light duty job descriptions. Any time lost in waiting for a response from the physician regarding a light duty job is at the expense of the Employer. It should be noted that it is essential that all descriptions which are provided to the authorized treating physician for proposed light duty work are accurate. If feasible, light duty job descriptions should be reviewed by the injured worker and an agreement should be reached that the description is accurate.

The Workers' Compensation Act also rewards Employers who have light duty work policies in providing a method to suspend a worker's weekly income benefits if that worker is unwilling to attempt a suitable light duty job. O.C.G.A. § 34-9-240 provides that if an injured worker refuses to attempt a light duty job which has been approved by the authorized treating physician, then the Employer shall be authorized to suspend the worker's weekly income benefits until such time as the refusal has ceased, or, until it is determined by the State Board of Workers' Compensation that the refusal is justified. In order to avail itself of this statutory right, an Employer must meet certain requirements. Specifically, the Employer must have an accurate light duty job description reviewed and approved by the authorized treating physician as being suitable to the particular employee's restrictions. The Employer must also complete the State Board of Workers' Compensation form WC-240 certifying that the employee was given at least ten (10) days notice of the light duty job. The job must have been approved by the authorized treating physician within sixty (60) days of the employee having been examined by the authorized physician. An Employer must attach to the WC-240 form the light duty job description, the written approval of the authorized treating physician, as well as the location, date and time that the employee is to report to work. (Board Rule 240).

It should be noted that if an employee attempts the proffered light duty job and is unable to perform the job for more than fifteen (15) working days, then an Employer must immediately reinstate that worker's benefits. If an Employer believes that the worker has not made an honest effort of completing the job, the burden shall be upon the Employer to prove that the employee is not entitled to weekly income benefits. This decision will be made at a hearing before an Administrative Law Judge. (O.C.G.A. § 34-9-240). It should be noted that the Georgia Court of Appeals has held that in order for a light duty job to be "suitable," a job must be commensurate with the individual's physical limitations and must also be in accord with the individual's ability, skill and must be feasible with regard to geographic location. See, City of Adell v. Wise, 261 Ga. App. 53, 401 S.E.2d 522 (1991).

III. Tools to be Considered After the Claim is Filed

A. Automatic Change in Condition

In a compensable case where an employee has been released to return to work with restrictions by the authorized treating physician for 52 consecutive weeks or 78 aggregate weeks, within 60 days of the employee's release to return to work with restrictions or limitations, the Employer should serve upon the employee notice, State Board form WC-104, that the employee has been released to return to work with limitations and that after 52 consecutive weeks or 78 aggregate weeks, the employee's temporary total disability benefits will automatically be reduced to temporary partial disability benefits. This code section allows an Employer to have an automatic change in condition for the better when an employee has been released to return to work with the above stated specifications. This will allow an Employer to reduce the employee's temporary total disability income benefits to temporary partial income benefits, which depending upon the employee's average weekly wage may be a significant weekly reduction. In addition, the Employer's total exposure will be reduced from 400 weeks to 350 weeks of benefits. This code section only applies where the injury occurred on or after July 1, 1992 and is not catastrophic. (O.C.G.A. §§ 34-9-104, 34-9-200.1).

This automatic change in condition for the better is of great benefit to employers who do not have suitable light duty work available for an injured worker who has been released in a compensable case. Many times when an employee receives the WC-104 notice, this will generate an interest in trying to settle the matter and may also encourage the employee to look for suitable light duty work with another employer. In all compensable cases, an Employer should establish a calendar system and keep close watch on an employee's medical status so that this tool may be effectively used.

B. Rehabilitation

Historically, employers have had varied amounts of success with the use of rehabilitation suppliers. Often suppliers act as an intermediator between the injured worker and the Employer, as well as keeping in contact with the medical providers in an effort to ensure that the employee is receiving appropriate medical treatment which will return the employee to the work force as soon as feasible. A good rehabilitation supplier can move the case forward in a beneficial fashion for all parties.

As of July 1, 1997, rehabilitation suppliers are mandatory for catastrophic injuries. (For a definition of catastrophic injuries see O.C.G.A. § 34-9-200.1). In non-catastrophic cases, rehabilitation is now strictly voluntary. The Workers' Compensation Act requires that the parties agree to a supplier and this agreement must be in writing. In addition, the supplier must hold one of the certifications or licenses as specified in the Workers' Compensation Act and must be registered with the State Board of Workers' Compensation (O.C.G.A. § 34-9-200.1). The written agreement for voluntary rehabilitation services must reflect that the services are voluntary, must be dated, and signed by all parties. The written agreement should be retained by the rehabilitation supplier. At any time, an employee or the employer may withdraw its consent for rehabilitation services and that supplier shall have no further contact, in person or in writing, with the employee, the employee's attorney, or the employee's authorized treating physician. (Board Rule 200.1).

With the current law making rehabilitation voluntary, the question often arises as to whether an Employer may utilize the services of a rehabilitation supplier, case manager or rehabilitation nurse, also known by other names, in an effort to monitor the file and help return the injured worker to suitable employment. While it is not entirely clear from the current statute and board rule, it is the author's opinion that an Employer may have such a person working as their agent to contact and speak with the authorized treating physician, conduct labor market surveys, perform job analysis of potential light duty jobs with the Employer, and perform other limited activities. It is important to note that this person is acting only as an agent of the Employer and is not acting as an appointed rehabilitation supplier. This must be made clear by that agent when working on the case. In addition, if the employee is represented, this person should have no contact whatsoever with the employee. In regard to contact with the authorized treating physician, generally, the authorized treating physician will require a release before speaking with anyone regarding the patient. (Medical authorizations are discussed below).

C. Access to Medical Information

In any given workers' compensation case, be it controverted or compensable, it is essential that the Employer and/or its agents have access to the employee's medical records. In addition, physicians are often reluctant to speak with Employers regarding an injured worker's medical treatment without a release. In general, most doctors are unaware of or are unwilling to honor statutory provisions which have been specifically established for workers' compensation claims which waives an employee's right to confidentiality.

O.C.G.A. § 34-9-207 provides a waiver of any right to privacy or privilege regarding an injured workers' medical treatment. Specifically, the statute sets forth that when an employee has filed a workers' compensation claim, or is receiving payment of weekly income benefits, or the employer has paid medical expenses, the employee is deemed to have waived any privilege or confidentiality concerning " . . . any communications related to the claim or history or treatment of any injury arising from the incident that the employee had with any physician, including, but not limited to, communications with psychiatrists or psychologists." This statute makes clear that this waiver is true notwithstanding any other statute to the contrary. In addition, this provision requires that an employee provide the Employer with a signed release for medical records and information " . . . related to the claim or history or treatment of an injury arising from the incident . . .," this includes treatment for any mental health condition or substance abuse problem. The release is required to designate the provider and must have an expiration date. The statute goes on to explain that if an employee refuses to provide a signed release for medical information, that employee's weekly income benefits may be suspended and that no hearing shall be scheduled until such time as the employee has provided the release. (O.C.G.A. § 34-9-207). It should be noted that the State Board of Workers' Compensation has published an authorization and consent to release information which is State Board form WC-207. While the statute does not necessarily require that an Employer utilize the Board form, it is recommended that an Employer use this form. The Board is more likely to support a request for medical authorization when the Employer is using the Board approved form.

It is recommended that Employers keep the Board published medical authorization as part of their workers' compensation initial report files and that when an injured worker first reports a work-related injury, the release should be executed by that worker. Having the release executed at the time of the report will help prevent any unnecessary delay in obtaining the authorization and the appropriate medical information.

D. Change of Physician

As is noted above, the opinion of the authorized treating physician can be the determining factor in any given workers' compensation case. The authorized treating physician's opinion will greatly impact the cost of medical treatment, as well as when and if an employee is released to return to work in a light or full duty capacity. As such, having the appropriate medical providers as the authorized treating physician is essential. This process begins with having a valid properly posted panel of physicians with appropriate physicians being supplied to injured workers. So long as an Employer has met the above-referenced requirements regarding the panel and the notice procedures associated with the panel, then an Employer maintains primary control over the medical treatment. An employee is allowed to have one change within the panel without permission of the Employer. However, any additional changes must be by agreement or by an order of the State Board of Worker' Compensation. In addition, if an Employer does not have the proper panel but is paying medical bills of a physician whom has been selected by the employee, then that physician will become the authorized treating physician. Once an Employer has controverted a claim, they no longer have control over the medical treatment, however, if the controverted claim is later found to be compensable or is accepted by the Employer as compensable, the employee must then select one physician who has provided the employee with treatment for the work-related injury and that physician will become the authorized treating physician. (O.C.G.A. § 34-9-201 and Board Rule 201).

Once an authorized treating physician is determined, should that physician's treatment be found to be unacceptable, for any legitimate reason, by the Employer or employee, either party may file a request for a change of authorized treating physician. This is a written request which is filed with the State Board of Workers' Compensation and it is recommended that the Employer obtain the aide of an attorney when doing so. There are specific guidelines provided by the State Board as reasons why a change in physician may be appropriate. (For these guidelines, see Board Rule 200). In addition, a change of physician should only be requested with the State Board when the parties have made a good faith effort to reach an agreement regarding a change of physician. When the efforts of the parties fail, either party may petition the Board for such a change. Generally, so long as there is a reasonable argument for change and a reasonable argument for not changing, the request is referred to the Alternative Dispute Resolution section of the State Board of Workers' Compensation. The matter is then set for a mediation conference.

Generally, mediations are scheduled in a location nearest to the employee's residence and a representative from the Employer must be present at the mediation. This is in addition to having an attorney present on behalf of the Employer. Mediations are informal and, according to the State Board of Workers' Compensation, have an approximate 80% success rate. It should be noted that if a mediation is scheduled for a change of physician, so long as the parties are in agreement, then the mediation may be converted into a settlement mediation as well. Generally, it is beneficial to all parties involved to sit down face to face and discuss various issues which may have arisen in a case. In a change of physician mediation, each side is asked to provide the names of three (3) physicians which that party would find acceptable as the authorized treating physician. Selection of this physician is as important as the selection of the physicians for the panel. In that regard, while everyone may have slightly different opinions regarding the qualifications and any bias which a particular physicians may have, it is recommended that the Employer offer physicians who have good reputations and will be able to provide appropriate medical treatment. A physician should not be offered solely on the basis that that physician has a "conservative" reputation in workers' compensation cases. Generally, the State Board is aware of "conservative and liberal" physicians and will avoid them.

E. Independent Medical Evaluations

The Workers' Compensation Act sets out provisions whereby an Employer may obtain an independent medical opinion from a physician of their choice. Certain guidelines are also set forth for a Claimant to obtain an independent medical opinion. While independent medical evaluations are used for various reasons, generally, they should be used to obtain a second opinion regarding current or proposed treatment, as well as work restrictions and for the degree of permanent partial disability. Before seeking a request for a change of physician, an Employer may wish to consider obtaining an independent medical evaluation with the physician to whom the Employer is considering seeking a change of physician. This will allow an Employer to have some insight into what that physician may propose for the employee's treatment. It should be noted that some physicians will not treat a patient if they have performed an IME.

An Employer may obtain an independent medical evaluation after an injury has occurred and so long as the employee is seeking compensation. The evaluation will be at the Employer's expense and must be at a reasonable time and location by a duly qualified physician, surgeon, psychiatric or psychological examiner. An Employer must give an employee ten (10) days written notice of the time and place of any requested examination and advance travel expenses must accompany the notice. If an employee refuses to submit to an independent medical evaluation, the Employer may petition the State Board for permission to suspend the employee's weekly income benefits. Generally, the State Board will not suspend an employee's weekly income benefits for missing an independent medical evaluation until the second or third time. A reasonable standard is applied when considering an excuse offered by the employee for missing the evaluation. (O.C.G.A. § 34-9-202 and Board Rule 202).

An employee also has the right to have an independent medical evaluation when that employee's claim has been accepted as compensable and within sixty (60) days of receipt of any income benefit. The examination must be at a reasonable time and place, within the state or within fifty (50) miles of the employee's residence. If the case has been controverted or if it has been over sixty (60) days since weekly income benefits have been paid to an employee, the employee may not have an IME at the Employer's expense. (Id.)

When an Employer is obtaining an independent medical evaluation, the doctor's reputation and expertise should be considered before setting the evaluation. Again, if the medical provider has a known reputation as a "defense doctor," the value of that doctor's opinion in front of the State Board of Workers' Compensation will be questionable.

F. Surveillance

In any case, the facts may present themselves in such a fashion that an Employer begins to question whether an employee is being honest regarding his or her physical limitations and perhaps whether that employee is working. When this occurs, Employers commonly utilize the services of private investigators to conduct surveillance. Properly utilized, surveillance can prove to be extremely helpful in workers' compensation cases and in certain instances may bring the case to a quick resolution.

When considering obtaining the services of a private investigator, it is recommended that the investigators chosen must have a license in the state where the surveillance is going to occur and references should be checked. Typically, an Employer will be best suited deferring to the opinion of the claims handler or their attorney when selecting an investigator. In addition, if an investigator is given inaccurate information regarding the physical description of the injured worker or that worker's residence, then the investigation will almost assuredly not obtain positive results. Some initial work must be performed when assigning the case for investigation in that the investigators must be provided with an accurate description of the employee and with a current residence of the employee. In addition, if the Employer is aware of any medical appointments or other appointments, the investigator should be placed on notice so that the injured worker may be "picked up" at those specific appointments.

While the cost of investigators varies, generally one investigator per an eight (8) hour day cost between $500.00 to $700.00. While surveillance is not inexpensive, assigning only one (1) day of surveillance, without some specific intent in mind, will likely not obtain beneficial results. Generally, performing only one (1) day of surveillance is relying too much on luck. Typically, two (2) to three (3) days of surveillance are required in order to obtain a realistic idea of what activities an injured worker may be performing.

IV. The Recurrent Claimant —
What you can do to ensure that this time will be the last.

In Georgia, future workers' compensation claims cannot be closed out or settled. An injured worker may only settle current or past claims. The only way an Employer may attempt to ensure that a particular worker will not file another claim against that Employer is to settle the current workers' compensation with the employee and at that same time obtain a voluntary resignation and release. While the State Board of Workers' Compensation does not officially support Employers requiring a voluntary resignation and release as part of the workers' compensation settlement, it is a practice which is common in the State of Georgia. Please note that an injured worker should not be terminated solely because they have filed a workers' compensation claim and that the obtaining of a voluntary resignation and release is only in connection with a settlement agreement. In addition to obtaining a voluntary resignation, a release should also contain language indicating that the injured worker will not reapply with the particular Employer and consideration should be given to making an effort to close out other potential lawsuits such as discrimination claims, Family Medical Leave Act claims, American with Disabilities Act claims, unemployment benefit claims, and any other potential liability. While the ability of these releases to close such out a diversity of claims is still uncertain in Georgia, it does not hurt an Employer to obtain such a waiver.

There are two (2) types of settlements in workers' compensation claims in Georgia. There is the "bona fide dispute" and the "no liability settlement" agreement. These documents are commonly referred to as the Stipulation and Agreement. It should be noted that before any workers' compensation settlement is binding upon any party, the settlement agreement must first be reviewed and approved by the State Board of Workers' Compensation. (O.C.G.A. § 34-9-15). A bona fide dispute stipulation is one wherein liability is admitted by the Employer and sets forth the contentions of each side. A no liability stipulation is one wherein the Employer does not admit liability and sets forth the contentions of each side. A bona fide dispute settlement agreement sets forth amounts paid to the employee to settle the workers' compensation case. A no liability settlement agreement does not reflect any monies being paid to the Claimant, however, it simply states that the Claimant has agreed to dismiss his or her claim against the Employer. A separate contract is executed by the parties wherein the payment made to settle the matter.

As the terms of any settlement agreement are extremely important to an Employer, it is absolutely recommended that an Employer obtain the services of a workers' compensation attorney to prepare the settlement documents.

An Employer may wish to consider utilizing a "structured settlement" when settling very expensive cases. A structured settlement is one where all parties agree that the employee's settlement will be paid over a period of time with installments. Structured settlements may be beneficial to an employee in that it may help the employee's ability to pay long term expenses and basic living requirements. The period of time over which payments may be made is up to the parties. In addition, the amount of the payments can remain the same or can vary over time. Generally, an Employer assigns its duties to make periodic payments to an insurance or annuity company which then funds the employee's payments with an annuity investment. The potential benefit to the Employer is that, depending upon the amounts involved, an Employer may invest a smaller amount up front, which when properly invested over a period of time, results in more money to the employee. A structured settlement must also be approved by the State Board of Workers' Compensation. A detailed structured settlement payment plan and contract must be provided in addition to the stipulation and settlement agreement.

V. Avoiding Workers' Compensation Claims by Employees of a Temporary Agency

While it may make common sense that if an Employer engages the services of a temporary agency to provide a worker then that Employer should not be responsible for workers' compensation benefits for the temporary employee, this is not necessarily true. The Georgia Worker's Compensation Act has a provision which could conceivably make the Employer liable despite the use of a temporary agency. Specifically, O.C.G.A. § 34-9-8 provides that "a principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate Employer." This is commonly referred to as the "statutory employer" provision of the Workers' Compensation Act. This code section allows an injured worker to pass through his or her immediate employer to seek workers' compensation benefits from any intermediate or principal employer. In the temporary agency situation, if the temporary agency does not have workers' compensation insurance, the injured temporary agency employee could potentially collect workers' compensation benefits from the overall Employer that contracted with the temporary agency.

The best way for an Employer to protect themselves from claims of this nature is to require that the temporary agency provide proof of having workers' compensation insurance for its workers. Typically, this may be accomplished with a certificate of insurance. In addition, an Employer may also contact the State Board of Workers' Compensation coverage department in an effort to determine whether a temporary agency has workers' compensation insurance. As a practical matter, the temporary agency could cancel its insurance the day after receiving a certificate of insurance and registering with the State Board of Workers' Compensation, as such, these suggestions are not fool proof. Common sense should dictate in this regard and an Employer should utilize a temporary agency who has been in business for a number of years and has a proven reputation.

VI. Tailoring a Position to Get the Most Out of an Injured Worker Without Landing in the ADA Quagmire

The American with Disabilities Act (ADA) became law on July 26, 1992. The stated purpose of the Act is to provide a comprehensive national mandate for the elimination of discrimination against individuals with disabilities. According to the Act, a "qualified" individual with a disability is protected in every phase of employment, therefore, all terms, conditions and privileges of work, including hiring, advancement, discharge, and the provision of benefits are regulated. A private employer and any agent of the employer is subject to the provisions of the Act if the Employer is engaged in industry affecting commerce and employs fifteen (15) or more people during each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year. (42 U.S.C. § 1211(5)(a)). The Act requires the Employer to make reasonable accommodations for disabled employees unless the accommodation would result in an undue hardship to the Employee's business; or, the employee poses a direct threat to himself or others due to his disability. (42 U.S.C. § 12112).

When considering workers' compensation issues and ADA issues, an Employer should keep a few things in mind. Specifically, ADA claims supercede the exclusive remedy provisions of the Workers' Compensation Act. The ADA creates a distinct, separate claim regarding employment discrimination following an injury. The ADA requirement supercedes any conflicting state workers' compensation laws. See, Equal Employment Opportunity Commission; a technical assistance manual on the employment provisions of Title I of the Americans with Disabilities Act, Chapter IV (1992) et seq., at 2. Accordingly, an Employer should be aware that termination of an individual following a compensable related injury must be done within the mandate of the ADA or the Employer may be subject to a separate suit based upon a violation of the ADA.

The ADA intersects with workers' compensation laws generally when an employee has been released to light duty work after the work-related injury. If the employee's restrictions allow the employee to perform the essential functions of his or her job, then the ADA does apply. If, on the other hand, the restrictions do not allow the employee to perform the essential functions of his or her job, then the ADA does not apply. The determination as to whether an employee's restrictions prevent them from performing the essential functions of his or her job is to be made by the Employer. While this initial decision is left to the Employer, it should be noted that if the employee takes issue with that evaluation, this is a matter which may eventually be decided by the EEOC. It is generally recommended that when an Employer determines the "essential functions of the job" they should do so by reviewing the job and obtaining input from other current or past employees who are in the same position.

An Employer must compare the essential functions of a job with the employee's restrictions. In addition, it must be determined whether the employee's condition is one that affords the employee coverage under the ADA. Assuming that the employee is covered under the ADA, then the Employer must determine whether that particular restricted employee is able to perform the essential functions of his or her job. Again, this is a determination which is to be made, at least initially, by the Employer. When an Employer is making this determination, it is strongly recommended that the Employer obtain the opinion of the authorized treating physician for the workers' compensation case, perhaps the opinion of an independent medical evaluator and the Employer should also inquire with the authorized treating physician as to whether a functional capacity evaluation would be beneficial. Assuming that an employee is able to perform the essential functions of the job, the next determination to be made by the Employer whether a "reasonable accommodations" can be made such that the employee may return to his or her job. If a reasonable accommodation can be made, then the question becomes whether such an accommodation will work "an undue hardship" on the Employer. In general terms, an undue hardship refers to a significant cost or difficulty on the part of the Employer.

One example of an accommodation which was found by the EEOC to be reasonable was providing a certified nursing assistant with a hoyer lift (a mechanism which helps lifts the patient from a bed) so that the certified nursing assistant could continue performing her job. While the hoyer lift was not inexpensive, it was determined that the cost was not significant enough to work an undue hardship on the Employer.

It should be noted that Employers are not required to create positions as a reasonable accommodation. The ADA does not require an Employer to create a "light duty" position for any injured employee who cannot perform the essential function of his or her regular job. Creating such a job by restructuring is not required by the ADA; however, cases have been interpreted that if an Employer already has a vacant light duty position for which an injured employee is qualified, it is a reasonable accommodation to reassign the worker to that position. See, EEOC v. AIC Security Investigations, Ltd., 881 F.Sup. 614 (N.D.Ill 1993). An Employer may tender a "light duty" job as a temporary reasonable accommodation to an injured worker. However, when an Employer places an injured worker in a temporary "light duty" position, that worker is a "qualified" person under the Act for the position in which they are placed. As such, a worker's qualifications must be gauged in relation to the position occupied, not in relation to the job he or she held prior to the injury. This means that it may become necessary to provide additional reasonable accommodations to enable an injured worker in a light duty position to perform the essential functions of that position.

When an injured worker is released to return to work with restrictions which would allow that worker to perform the essential functions of his or her pre-injury job, the Employer must reinstate that individual into the pre-injury job unless it is an undue hardship for the Employer to have held the job open or to make that job available when the employee is able to return to work. It should also be noted that the authorized treating physician's opinion for the workers' compensation case is not necessarily controlling for an ADA claim. For an example, it is possible that the workers' compensation authorized treating physician may list an employee as totally disabled, however, this is not determining for ADA purposes. It is conceivable that workers' compensation physician may have an employee on total disability but that reasonable accommodations could be made for purposes of the ADA to allow that employee to return to employment. As such, when an employee is totally disabled by the workers' compensation physician, the Employer should still consider whether the employee can perform the essential functions of his or her job with reasonable accommodations. While this may be a situation which does not often arise, as the typical injured worker who is totally disabled is not attempting to return to work, an Employer must be cautious if such worker attempts to return to the work force. If this occurs, the Employer should determine whether reasonable accommodations can be made without undue hardship and it should also consider whether there is a substantial risk of harm or a safety concern to the employee or to another worker when returning the injured worker to employment.

William N. Anderson received his BA in 1990 from the University of North Carolina at Charlotte. He received his Juris Doctor from Mercer University in 1993. While in law school, he was a member of the law review (1991-1993), received the Dean's Public Service Award, and was the Co-Chair of the 1993 National Conference of Law Reviews.

He is a partner with the law firm of Hamilton, Westby, Antonowich & Anderson, where his primary area of practice is workers' compensation defense. Mr. Anderson often speaks to employers, insurers, and self-insurers regarding workers' compensation issues. He is the co-founder of GA WorkersComp, and may be reached at bill@gaworkerscomp.com or (404)-872-3500.

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