City of Atlanta v. Sumlin
| Decision Date | 14 November 2002 |
| Docket Number | No. A02A1232.,A02A1232. |
| Citation | 258 Ga. App. 643,574 S.E.2d 827 |
| Parties | CITY OF ATLANTA v. SUMLIN. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Susan P. Langford, Jo Avery, Bruce P. Johnson, Atlanta, for appellant.
Clements, Clark & Sweet, Lawrence T. Clements, for appellee.
This workers' compensation case presents first impression issues as to the proper construction of OCGA § 34-9-104(a)(2). The statutory provision was enacted in Ga. L. 1992, p. 1942, § 11, as part of a substantial revision of the Workers' Compensation Act.
Claimant Sumlin was injured on the job with the City of Atlanta on December 4, 1997, and has received full salary or temporary total disability benefits pursuant to OCGA § 34-9-261 since that time. His authorized treating physician initially approved him to perform work with limitations on October 29, 1998. The doctor then reaffirmed that Sumlin was capable of performing work with limitations on July 27, 2000, stating that the same limitations she had approved in 1998 have been in effect since that day.
On August 14, 2000, the employer filed with the State Board of Workers' Compensation and served on Sumlin a WC-104 form providing for a reduction of Sumlin's benefits from the temporary total disability benefits rate to the temporary partial disability benefits rate provided pursuant to OCGA § 34-9-262. Attached to the WC-104 form was the authorized treating physician's initial approval of Sumlin's ability to work with limitations on October 29, 1998, and the reaffirmation of that approval on July 27, 2000. On September 5, 2000, the employer filed a WC-2 form for suspension of benefits under OCGA § 34-9-104 with the Board.
Subsequently, the administrative law judge (ALJ) granted Sumlin's motion to maintain benefits at the temporary total disability benefits level pending a hearing on the issues arising from the attempt to reduce benefits. At the hearing, the employer presented uncontroverted testimony from its claims adjuster that the 78 aggregate weeks for temporary total disability benefits terminated on or about April 28, 2000, and that the employer continued to pay Sumlin temporary total disability benefits for an additional four months beyond the 78-week ceiling.
Following the hearing, the ALJ entered its order concluding that the doctor's July 27, 2000 affirmation of her earlier release with restrictions was not sufficient to meet the requirement imposed by Board Rule 104 for an attached medical report from the authorized physician. Therefore, because the employer filed a WC-2 form for suspension of benefits under OCGA § 34-9-104(a)(2) with the Board for the first time on September 5, 2000, and the initial approval of Sumlin's ability to work with limitations occurred on October 29, 1998, the ALJ determined that the employer did not provide the required notice to Sumlin within 60 days of his release to return to work with restrictions, and that, consequently, the employer did not comply with OCGA § 34-9-104 or Board Rule 104. Based on these conclusions, the ALJ held that the employer "shall not be allowed to reduce the Employee's temporary total disability income benefits to temporary partial disability income benefits at this time." The appellate division adopted the award of the ALJ, and the superior court affirmed.
1. OCGA § 34-9-104(a)(2) provides in part that:
When an injury is not catastrophic, as defined in subsection (g) of Code Section 34-9-200.1, and the employee is not working, the board shall determine that a change in condition for the better has occurred and the employee shall be entitled to the payment of benefits for partial disability in accordance with Code Section 34-9-262 if it is determined that the employee has been capable of performing work with limitations or restrictions for 52 consecutive weeks. Within 60 days of the employee's release to return to work with restrictions or limitations, the employee shall receive notice from the employer on a form provided by the board that will inform the employee that he or she has been released to work with limitations or restrictions, will include an explanation of the limitations or restrictions, and will inform the employee of the general terms of this Code section. In 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....
And the related Board Rule 104 states that:
When suspending benefits pursuant to O.C.G.A. § 34-9-261 and also commencing benefits pursuant to O.C.G.A. § 34-9-262, under the authority of O.C.G.A. § 34-9-104(a)(2), the employer/insurer shall file Form WC-2 and shall attach a copy of the authorized treating physician's report establishing that the employee has been released to return to work with restrictions or limitations, and must specify on Form WC-2 that the employee's injury has not been described as catastrophic within the meaning of O.C.G.A. § 34-9-200.1(g), that the employee has been medically determined to be capable of performing work with limitations or restrictions for at least 52 consecutive weeks, or 78 aggregate weeks, 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 or limitations. The Form WC-2 and Form WC-104 with attachments shall be sent to the employee and to the employee's attorney at the same time these forms are filed with the Board.
The primary issue presented is whether the 78-week limit on temporary total disability benefits provided in OCGA § 34-9-104(a)(2) is conditioned on compliance with the provision for notice from the employer to the employee within 60 days of the employee's release to return to work with restrictions or limitations. The Board has indicated an affirmative answer to this question not only by its judgment but also through the provisions of Board Rule 104 which condition an employer's suspension of temporary total disability benefits and commencement of temporary partial disability benefits on the employer's compliance with the notice within 60 days provision.
OCGA § 34-9-60(a) empowers the Board to make rules to carry out the Workers' Compensation Act. "The ...
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