Mastering Form WC-104

Written by: Ann Baird Bishop, Esq.

For almost 20 years, the Workers’ Compensation Act has provided for unilateral conversion from temporary total disability benefits to temporary partial disability benefits in non-catastrophic claims where the claimant is released to light duty for 52 consecutive weeks or 78 aggregate weeks, provided the employer files a correct form WC-104 and follows the Rules enacted by the State Board of Workers’ Compensation for doing so.  Despite the length of time the 104 process has existed, employers and insurers still struggle with the proper use of the WC-104.  Given the “degree of ambiguity and conflict” of the language in O.C.G.A. § 34-9-104(a)(2) (City of Atlanta v. Sumlin, 258 Ga. App. 643, 574 S.E. 2d 827 (2002)) it is, perhaps, not surprising that adjusters continue to struggle.

First, it is imperative that the WC-104 be completed fully and correctly.  Every decision discussing the WC-104 which has been issued by the Court of Appeals emphasizes that “because the Workers’ Compensation Act is in derogation of common law, its provisions must be strictly construed.”  Metropolitan Atlanta Rapid Transit Authority v. Bridges, 276 Ga. App. 220, 623 S.E. 2d 1 (2005) quoting Coker v. Deep South Supplies, 258 Ga. App. 755, 756 Fn. 3, 574 S.E. 2d 815 (2002).  Failure to follow the Rule precisely and complete the form fully and correctly will preclude unilateral conversion of the claimant’s benefits from temporary total to temporary partial.

What is required?  The claims handler must monitor medical records carefully.  Rule 104 provides that within 60 days of the claimant’s release to return to restricted duty by “the authorized treating physician,” “…the employer/insurer shall file a form WC-104 with the Board and shall serve the employee and the employee’s attorney the form WC-104….”  Unlike Rule 221, which requires an actual examination by the authorized treating physician within 60 days prior to unilaterally suspending benefits based on a release to return to work without restrictions, Rule 104 does not require an examination within 60 days, merely a release to work with restrictions by the authorized treating physician within 60 days.

The release must be issued by “the employee’s authorized treating physician.”  A release by a referral physician is not sufficient.  Problems arise when a claimant selects a general practice clinic from the panel as the authorized treating physician, but, later, is referred to a specialist for care.  Efforts should be made to have the referral physician appointed as the authorized threating physician if ongoing care by the specialist is contemplated.  If an agreement is made that the referral physician become the authorized treating physician, a WC-200a should be filed confirming that agreement.  A verbal agreement will not be sufficient.  Even a written agreement may be ruled insufficient if it is not confirmed by filing a form WC-200a.

If the referral specialist has not been appointed the authorized treating physician by filing a WC-200a, the authorized treating physician may be asked to adopt/ratify the specialist’s light duty release.  Since no appointment within 60 days is necessary to support the light duty release under Rule 104, this should be adequate.  When the release by the authorized treating physician is received within 60 days and the WC-104 is completed fully and completely, the form must be filed with the State Board of Workers’ Compensation and the employee and the employee’s attorney must be served.  Since it may be necessary to prove service, service by email should be used if possible.  If it is not possible to serve the employee by email, placing the WC-104 in the same envelope with a disability check can give the necessary proof where the check is cashed.  Certainly, certified mail is an option, albeit a more expensive option.

Unilateral Suspension of Temporary Total Disability Benefits and Commencement of Temporary Partial Disability Benefits After Filing/Serving Form WC-104

There are four (4) primary situations in which questions about converting the claimant’s benefits from temporary total to temporary partial may arise:

1. A light duty release continues uninterrupted for 52 consecutive weeks;
2. Within the 52 consecutive weeks of light duty release, the Claimant returns to light duty work for some period of time before going back out of work still under light duty restrictions;
3. Within the 52 weeks, the Claimant is taken out of work entirely before being, again, released to light duty;
4. When benefits have been converted to temporary partial disability benefits after 52 consecutive weeks, the employee is taken out of work entirely before being, again, released to light duty work.

Each situation has particular issues and will be discussed separately below.

1. When a WC-104 supported by a light duty release from the authorized treating physician is filed with the Board and served on the employee and the employee’s attorney and the light duty release continues with the employee remaining out of work for 52 consecutive weeks, temporary total disability benefits may be suspended and temporary partial disability benefits commenced by filing a WC-2 with the Board. It is recommended that the WC-104 and supporting medical be attached.  Of course, everything which is filed with the Board must be served on the employee and the employee’s attorney, if represented.
2. When the employee has been served with a proper WC-104 and returns to work within the 52 weeks before, again, going out of work still on light duty restrictions, the period of time the claimant was working may not be counted toward the 52 week requirement. Metropolitan Atlanta Rapid Transit Authority v. Thompson, 326 Ga. App. 631, 757 S. E. 2d 228 (2014).  Either a new WC-104 must be filed and served starting the 52 weeks, again, or the employer must use the 78 aggregate weeks.  In either event, a new WC-104 should be served notifying the employee of the revised conversion date.  Although the statute and Rule do not specifically state that a WC-104 must be used when suspending after 78 aggregate weeks, case law suggests that the Court of Appeals may impose such a requirement.  See Metropolitan Atlanta Rapid Transit Authority v. Bridges, supra. The decision as to whether to start a new 52 week period or to utilize the 78 aggregate weeks should be determined based on the number of weeks which elapsed prior to the claimant’s return to light duty work and stopping the clock.  If the claimant had not been working for more than 26 weeks when the return to light duty work occurred, it is recommended that the 78 aggregate week alternative be utilized since that will result in fewer weeks of temporary total disability benefits being paid.  On the other hand, if fewer than 26 weeks had elapsed prior to the employee’s returning to light duty work, the better course will be to file a WC-104 starting over on 52 consecutive weeks.
3. The situation is the same when the employee is taken out of work entirely within the 52 weeks after the initial notice pursuant to Rule 104 as when the employee returns to light duty within 52 weeks after the initial notice. When the employee is, again, released to light duty, a new WC-104 must be filed if the employer/insurer wishes to convert after 52 consecutive weeks.  Again, the 52 consecutive weeks should be used if fewer than 26 had elapsed from the initial light duty release and notification before the claimant was taken out of work entirely.  If more than 26 weeks had elapsed before the claimant was taken out of work entirely, it is recommended that a new WC-104 be filed indicating that benefits will be converted to temporary partial after 78 aggregate weeks.
4. There is no Court of Appeals case discussing the situation of what must happen when benefits have been converted unilaterally from temporary total to temporary partial based on a proper WC-104 and more than 78 weeks have elapsed since the initial light duty release and notification. It is suggested that when the employee is, again, released to light duty work, a unilateral conversion could succeed.  Even if the unilateral suspension does not succeed, there should be no assessment of attorney’s fees based on the same rationale utilized by the Court of Appeals in City of Atlanta v. Sumlin, supra, in refusing to affirm the award of assessed fees based on unreasonable defense when the City of Atlanta had been found to have converted improperly.  The Court of Appeals reversed the Board’s assessment of attorney’s fees noting the statute’s ambiguity and degree of conflict which had not previously been interpreted.  Careful research has not identified any appellate decision involving this particular fact situation.

In conclusion, the claims handler must always carefully monitor the medical records for a light duty release where the claimant is receiving temporary total disability benefits.  A WC-104 must be filed within 60 days of the light duty release by the authorized treating physician.  The date of conversion from temporary total to temporary partial “shall be determined by the date the employee was released to work with restrictions.”  Rule 104(d)  In other words, where the WC-104 is filed and served within 60 days, the date of conversion is the date of the release, not the date of filing.  When suspending temporary total and commencing temporary partial based on a previously filed and served WC-104, a WC-2 must be filed.  Failure to file the WC-2 means that benefits may not be converted.  Diaries should be created to ensure the conversion and filing of the WC-2 takes place timely.

Please contact any of the workers’ compensation lawyers at Hall Booth Smith, P.C. with questions about your specific case.