CHANGE IN CONDITION - LEGAL AND MEDICAL ISSUES

By Jeffrey E. Hickcox

(McLain & Merritt)

CHANGE IN CONDITION

A change in condition generally refers to a situation where weekly benefits are either started or stopped.

"Change in condition" alone is a topic to which an entire seminar could be devoted to. This paper will focus only on the change in condition as it applies to use of the WC-104 and the WC-240.

A. The WC-104

This is an often-overlooked yet very important tool in the management of a case. The WC-104 is used to convert payments from temporary total to temporary partial in non-catastrophic claims when there has been a release to return to work with limitations but not an actual return to work. One of the greatest benefits of the conversion is that 50 weeks of lost time benefits may be removed from the claim. Total disability benefits are payable for up to 400 weeks from the date of the accident. However, temporary partial benefits are payable for only 350 weeks from the date of the accident. Obviously, cutting one year off of a claim is not a small benefit.

The procedure to be followed in accomplishing the change in condition allowed by use of the WC-104 is as follows. Once there is a release to return to work with limitations, a form WC-104 should be completed and sent to the claimant and his or her attorney if represented. The form should specify the nature of the restrictions and the medical release (which must be from the authorized treating physician) must accompany the form. The form should be completed and sent within 60 days of the date that the claimant was deemed able to return to work with some limitations. If the claimant remains capable of work in at least a limited capacity and continues to receive total disability benefits for 52 consecutive weeks following filing of this form, benefits may be converted to the temporary partial rate.

What happens if the WC-104 is not filed within 60 days of the date of the release to return to work with limitations? Although the law is not entirely clear, it would seem that the effect is to extend the period during which total disability benefits may be paid. O.C.G.A. § 34-9-104(a)(2) states that "[i]n no event shall an employee be eligible for more than 78 aggregate weeks of benefits for total disability while such employee is capable of performing work with limitations or restrictions." This seems to imply that even if the form is not filed; there is a limit on how long the claimant may receive total disability benefits.

What happens if, after being released to limited duty for 35 weeks, the claimant is put on total work restrictions for 20 weeks only to then be released again to work with limitations? In this instance, the claimant is entitled to receive total disability benefits for 78 aggregate weeks. Accordingly, the 35 weeks following the initial release will be counted, along with those weeks following the 20-week total work restriction, toward the 78-week aggregate limit on total disability benefits.

The temporary partial rate to be paid depends upon the claimant’s total disability rate. If the claimant’s total disability rate is more than the maximum temporary partial rate, benefits may be reduced to the maximum temporary partial rate. If the total disability rate is less than the maximum temporary partial rate, the benefit rate may not be reduced. Although there is not an immediate benefit in this case, remember that benefits are not payable for more than 350 weeks from the date of the accident once the conversion is made. Accordingly, there is still a significant benefit for the conversion even in those cases where the benefit rate remains the same.

Once the requisite weeks (52 or 78) of total disability have been paid and the conversion to temporary partial is to be made, a WC-2 must be filed with the Board documenting the conversion (even if the rate does not change) to temporary partial. The WC-2 must state that (i) the injury is not catastrophic; (ii) that the employee has been medically determined to be capable of performing work with limitations for at least 52 consecutive or 78 aggregate weeks; (iii) and that form WC-104 with an attached medical report was sent to the employee no later than 60 days after the date that the employee was determined able to return to work with restrictions. The WC-2 should be sent to both the claimant and counsel if represented.

B. The WC-240

For non-catastrophic claims with dates of injury of July 1, 1992 or later, the WC-240 may be used to suspend benefits when suitable light duty employment is available. Formerly, the only way to suspend benefits when light duty was available was an actual return to work; the granting of an interlocutory order suspending benefits (which the Board was reluctant to do); or after a hearing. While there are admittedly some serious limitations inherent in the WC-240, they are far outweighed by the benefits.

When the employer has light duty work for a claimant, a description of the job should be submitted to the authorized treating physician for approval. The approval of the job by the authorized treating physician must be no more than 60 days old when the form is filed. If it is more than 60 days old, the job description must be resubmitted for approval. Once the job is approved, the WC-240 should be completed and sent to the claimant and his or her attorney if represented along with the report of the authorized treating physician approving the job. The claimant must be given at least 10 days notice of the return to work date. The procedure for completing the form and filing it, along with the WC-2, which must accompany it, is also discussed in Section VIII.

Once the form is filed, there are three possible scenarios. First, the claimant may not return to work. In that event, benefits may be suspended for failure to accept suitable employment. The claimant must then request a hearing to reinstate benefits. Second, the claimant may make a brief return to work. If the claimant works 15 or less working days (any part of a day worked counts as one day), benefits must be automatically reinstated. If the treating physician still believes the job to be suitable, the best course of action is for the employer to go ahead and request a hearing to determine a change in condition. An Administrative Law Judge is authorized to find that a job is suitable even if the claimant works less than 15 days. However, the burden of proof will be cast upon the employer at the hearing to prove that the job is in fact suitable. Finally, the claimant may work more than 15 days. If the claimant, after working more than 15 days, alleges an inability to do the job and is not taken out of work by the treating physician, it is incumbent upon the claimant to request a hearing to reinstate benefits.

When filing the form, make sure that the employer is aware of the job offer and the date that the claimant is to return to work. Although it may seem obvious, more than one suspension pursuant to a form WC-240 has failed because the employer was not aware that the claimant was to return to work. It is rather embarrassing, after filing the form WC-240, to have the claimant show up for work only to be sent home by the employer. When that happens, the claimant can make a rather persuasive argument that the offer of light work was a mere sham and that he or she should not have to return to such a job. This situation can be avoided by one telephone call to the employer. Of course, it is always prudent to follow-up with the employer on the return to work date to be sure that the claimant did report to work. You should stress to the employer the importance of sticking to the job that was approved. No additional duties should be assigned to the claimant unless approved by the authorized treating physician. The assignment of additional, unapproved duties will give the claimant an excuse that will be accepted by the Board for refusing to work.

The Board strictly enforces O.C.G.A. § 34-9-240 and Board Rule 240 against employers and insurers. A suspension of benefits using Form WC-240 will not withstand a challenge from a claimant if every aspect of the Rule is not followed. Before filing the form, go over the following checklist:

1) Did the authorized treating physician approve the light job within the last 60 days?

2) Is the report of the authorized treating physician approving the job attached to the form?

3) Is the claimant being given at least 10 days notice of the return to work date?

4) Is all the information on the WC-240 completed including the specifics of the job duties, the wage rate, and the time to report?

5) Is a copy being sent both to the claimant and, if represented, his or her attorney?

6) Is the WC-2 completed?

7) Is the employer aware that the claimant is going to return to work on the specified date?

If you can answer all of these questions in the affirmative, you should have a WC-240 that will enable you to suspend the claimant’s benefits.

C. Change in condition versus new injury

On some occasions, a claimant may have a compensable accident and an injury resulting in disability and medical expenses. The worker then gets another job and is forced to stop work possibly due to a new injury or condition or arguably as the result of the original accident. This has been a very confusing area of the law and has resulted in much litigation.

One Georgia case that sought to clarify the issue was Central State Hosp. v. James, 147 Ga. App. 308 (1978). Basically, this case holds that the date of disability becomes the date of accident so that an individual who is injured with one employer but works until a later period will be held to have had a compensable accident on the day that he or she is forced to stop working due to a deterioration in the condition. However, if there is a compensable injury resulting in disability, and then the employee returns to work and has a specific incident resulting in an accident, this would also amount to a new injury. This issue has been stretched somewhat to the point where an individual who returns to work with his employer and then leaves that employer and goes to work with another employer and becomes disabled after performing more strenuous duties (arguably against his doctor's restrictions), has had a new injury. Certain v. U.S. F.&G., 153 Ga. App. 571 (1980).

It should be noted that the fact that a claimant goes to work with another employer or becomes disabled at a later period of time establishes no evidence of a new injury. Hartford Accident & Indemnity Co. v. Troglin, 148 Ga. App. 715 (1979).

There really must be a showing that more than just ordinary work caused a deterioration of the employee after a return to work. Otherwise, Georgia courts have regularly held that this amounted to a change in condition. We suggest caution in denying medical treatment or assuming a new injury unless there is actual evidence of an individual returning to work with another employer under more strenuous circumstances or evidence of a specific new injury and then with an incident that is documented.

Of course, a claimant may seek reinstatement of benefits because of a change in condition for the worse. There are several situations when this may occur.

First, the claimant can have an actual physical worsening of his or her condition. This may occur when a claimant who has been working at light duty is taken out of work by the treating physician. The simplest example of this is when the claimant is taken out of work for surgery. However, it is not necessary for the claimant to undergo a medical procedure in order to have a change in condition for the worse. A simple worsening of the claimant’s physical condition and a resulting disability slip from the treating doctor is all that is required.

It is not necessary that the claimant have an actual physical worsening of his or her condition to undergo a change in condition. "Disability" has long been defined by the Courts as "impairment of earning capacity." See Lumbermens Mutual Casualty Co. v. Cook, 69 Ga. App. 131 (1943). Accordingly, an economic change in condition can lead to reinstatement of benefits. This can occur in a couple of different ways.

Termination from a light job is perhaps one of the most common bases of a claimant’s change in condition request. In this situation, the claimant may not be any worse physically, but there is an economic worsening of his or her condition. The reasons behind the termination greatly impact whether or not the claimant may be entitled to a resumption of lost time benefits.

Upon a showing that a claimant is terminated because of his or her injury, he or she is entitled to a resumption of benefits. Padgett v. Waffle House, 269 Ga. 105 (1998). In such a case, there is no requirement upon the claimant to show a diligent job search. Because of ADA considerations, the reason for the termination is generally a contested issue.

In cases where the claimant is terminated for reasons unrelated to the injury, such as misconduct, the claimant might still prove a change in condition. However, the claimant in those cases must show a "diligent but unsuccessful" job search. Maloney v. Gordon County Farms, 265 Ga. 825 (1995). What constitutes a "diligent but unsuccessful" job search is a question of fact. In the Maloney case, the Court held that the claimant’s application for work with six employers was enough to satisfy the burden.

The claimant may also request a hearing to determine a change in condition for the worse after benefits have been suspended pursuant to form WC-240. If the claimant has worked less than fifteen (15) working days, the burden of proof at such hearing will be upon the employer to show that the light job is suitable for the claimant’s condition. If the claimant has worked more than fifteen (15) working days, the burden of proof will be upon the claimant. Similarly, if the claimant made no attempt to try the job, the burden of proof will be upon the claimant.

EMPLOYER ATTEMPTS TO TERMINATE BENEFITS

Basically, once weekly benefits start, they must be continued unless one of the few circumstances occurs.

1. The employee returns to work and earns as much as he was earning at the time of his injury. If he earns less, then he is entitled to temporary partial disability benefits. O.C.G.A. § 34-9-262.

2. If the employee receives a release to return to regular duty work by the authorized treating physician, then the employer may suspend benefits after giving the employee at least 10 days' written notice by filing a WC-2 form indicating the suspension of benefits and attaching a written copy of the regular duty release. Board Rule 221(h)(4).

3. Where an employee has been released to light duty work and a written job description has been approved by the authorized treating physician, the employee’s benefits may be suspended if he or she does not voluntarily return to work with a Board Form 240. (See Part B above). This form basically instructs the employee to show up to perform a specific job at a specific time with at least 10 days' advance notice. A written, signed job description describing the essential functions and duties of the job must be attached. Board Rule 240(b). If the employee does not stay at work for the next 15 work days and leaves due to a contended inability to perform the job, then the employer must recommence benefits and request a hearing before the State Board to obtain an order to suspend benefits. The suspension could conceivably go back to the time of the offer of the original light duty work, even though the employee has been paid benefits.