Pretrial Issues/Motions/Conference Calls

Alternatives to Having Your Day In Court

By: The Honorable Nicole D. Tifverman, Julie M. Poirier and J. Benson Ward

A General Background Of The Workers’ Compensation System
Workers’ Compensation in Georgia is a creature of statute—the Georgia Workers’ Compensation Act, O.C.G.A. §34-9-1, et seq. (the Act), and the accompanying Rules and Regulations of the State Board of Workers’ Compensation.  The Act provides potentially open-ended benefits to workers injured by accident arising out of and in the course of employment, while insulating employers from tort actions for virtually all work related accidents, regardless of fault.

Every employer subject to the Act is required to insure the payment of compensation to its employees. O.C.G.A. § 34-9-120.  If an employer elects to act as a self-insurer for purposes of workers’ compensation, the employer must furnish to the Board satisfactory proof of its financial ability to pay compensation directly in the amount and manner when due, and the Board has discretion to require that the employer deposit an acceptable security, indemnity or bond to secure the payment of compensation liabilities. O.C.G.A. § 34-9-121(a).  Each employer insured by a licensed insurer is required to file proof of insurance coverage with a licensed rating organization through the organization’s policy information system.  Board Rule 126(a).

When representing the injured employee, it is critical that you timely obtain accurate coverage information. There are several ways to get this information.  If you are unfamiliar with the ins and outs of filing a workers’ compensation claim, a good place to start is to go to the website of the State Board of Workers’ Compensation (the “Board”) (https://sbwc.georgia.gov) and follow the link from the home page labeled “Verify Workers’ Compensation Coverage.” You also may call the Coverage Unit  of the State Board of Workers’ Compensation at 404-656-3818 option 1. They are extremely helpful. Once you provide the Board the employer’s information (legal name and address if you have one), ideally the Board will give you the employer’s accurate insurance carrier information.  The Board relies upon NCCI (National Council on Compensation Insurance) for this information.  There can be a lag time between the updated NCCI data base and when the Board obtains the information. Therefore, if initially you are unable to obtain coverage information, it is also a good idea to check back in a few days to see if the system updated itself with the current coverage.

Another method of finding out the proper insurance carrier information is to utilize the online Integrated Claims Management System (ICMS II) (further explained below).   You must first register with ICMS II. After you register, you will have direct access to coverage information under the coverage section in ICMS II.   It is imperative, when searching for the carrier  through ICMS II, that you input the complete and accurate legal name of your employer. Another option for obtaining the insurance carrier information is to send a letter directly to the employer requesting this information. Similarly, back to the archaic days, you can pick up the phone and call the employer directly. Surprisingly, once the employer realizes that you are filing a claim, sometimes they are willing to share this information with you. Some employers realize that they must turn the claim over timely to avoid possible fines. You can also send a letter to the employer, enclosing your filed WC-14 (talked about below) to encourage them to share this information timely. If all else fails and your claim has been paid on a medical basis at any point in time, you can contact the medical providers directly and obtain the insurance carrier information this way.

The workers’ compensation system is largely form-driven, to assist in the expedited handling, payment, and resolution of claims.  The forms of the State Board of Workers’ Compensation are published by the Board and are available on the Board’s website.  However, generally speaking attorneys must file all forms with the Board electronically, via  ICMS II.

For more than a decade now, the Board has successfully implemented an online Integrated Claims Management System (ICMS), updated as of February 15, 2016 and called ICMS II.   Access to the ICMS website is located at https://wconline.sbwc.ga.gov/pages/public/login/login.xhtml.  Regardless of whether you are handling your first workers’ compensation case, or only your first in years, you must register with ICMS II, as essentially all activity on the case will occur through the ICMS portal for the case.  Pursuant to Board Rules 60(f) and 61(b)(60), generally all pleadings, forms, documents, correspondence, and other filings shall be filed with the Board electronically through ICMS web submission.  Similarly, Board Rule 102.1(a) requires attorneys to file, sign, and verify documents only by electronic means via ICMS.  New practitioners may register online at the ICMS website.

After The Accident – Initial Form Filing and Procedure
An injured worker must file a claim with the Board within one year after the date of accident, or within one year since the last remedial treatment was furnished by the employer or two years since the last payment of weekly benefits, otherwise O.C.G.A. §34-9-82’s statute of limitations will bar the claim.  This may be accomplished through filing a WC-14 Notice of Claim/Request for Hearing/Request for Mediation with the Board. You must send a copy of the filed WC-14 to the employer (and ideally if known, to the employer’s workers’ compensation insurance carrier). You need to fill out the form in its entirety.  If you are requesting a hearing you MUST list the exact issues of your case. If you do not list each item that you are requesting relief upon, the assigned administrative law judge cannot hear the issue and grant relief when it is time for trial.

As new issues arise, it is critical to update your original WC-14 throughout your case. Under the new ICMS II, you can utilize a WC-14a form as a request to change information on your previously filed WC-14.  Under ICMS II, there is also a separate and new form called a WC-Request To Change Information, specifically designed for the limited changes of correcting the employee’s name, Social Security or Board Tracking number, the county of injury and to correct a claims office that has been listed incorrectly in the claim.   For any claim filed after February 15, 2016, the previous onerous burden of including the correct insurance carrier’s claims office on the Employee’s initial WC-14 shifted from the employee to the employer.  The claims office will now be added by the employer’s filing of form WC-1 Employer’s First Report of Injury.

While the Board has discretion to excuse late notice of a work-related injury, the Board does not have discretion to excuse the late filing of a claim, and if a claim is not filed timely the Board does not have jurisdiction to decide the merits of the case.  Travelers Ins. Co. v. Hall, 128 Ga. App. 71, 195 S.E.2d 679 (1973).  Of course, as with other statutes of limitation, the conduct of an employer or insurer may estop them from asserting a statute of limitations defense, if the conduct either intentionally or unintentionally misled the claimant and induced him to withhold or postpone filing his claim. D.W. Adcock, M.D. v. Adcock, 257 Ga. App. 700, 572 S.E.2d 45 (2002).

From an employer’s perspective, it should place its carrier on notice of an accident as soon as the accident is reported.  Board Rule 61(b)(1) requires employers to complete a Form WC-1, or Employer’s First Report of Injury, “immediately upon knowledge of an injury and submit the form to their insurer.”  An employee must provide notice of an injury within thirty days, however generally speaking the notice requirement is often liberally construed.  For example, an employee’s notice does not have to show that the injury arose out of or in the course of employment, and the employee does not have to give notice to the employer with the intent of claiming compensation.  Schwartz v. Greenbaum, 138 Ga. App. 695, 227 S.E.2d 479 (1976).  As a rule of thumb, if there is evidence available to the employer indicating even the possibility that the injury is work-related, sufficient notice will be found.  Impress Communications, Inc. v. Stanley, 202 Ga. App. 226, 414 S.E.2d 238 (1991).  With this in mind, it is important for an employer to err on the side of caution and report all possible claims to its insurance company.

Board Rule 61(b)(1) requires the insurer to complete either Section B (commencing payment) or Section C (controverting payment) of the WC-1 form within twenty-one days following the employer’s knowledge of disability.  O.C.G.A. §34-9-221(b) requires that payment of benefits commence within twenty-one days of the employer’s knowledge of the injury or death, and failure to do so may result in a 15% penalty and also may subject the employer/insurer to assessed attorney’s fees under O.C.G.A. §34-9-108(b)(2).  Thus, with only twenty-one days (after employer awareness of disability) to report, investigate, evaluate and pay or controvert the claim, the importance of timely compliance is clear.  If an employer/insurer controverts the claim, it may do so by completing either Section C of the WC-1 form or by completing the WC-3 form, “Notice to Controvert.”  This twenty-one day deadline is not a statute of limitations for controverting a claim, and the claim may be controverted later, though at the risk of a possible assessment of attorney’s fees and penalties.  Stephenson v. Roper Pump Co., 261 Ga. App. 131, 581 S.E.2d 741 (2003).  However, in situations where an employer/insurer voluntarily commence benefits without an award, it may only controvert the entire claim within sixty days of the date benefits are due.  O.C.G.A. § 34-9-221(h).

From a practice standpoint, an attorney becomes counsel of record on a claim through following the proper filing with the Board.  A claimant’s attorney shall file a notice of representation by filing their attorney fee contract in compliance with Board Rule 108.  Counsel for an employer, insurer, or other party at interest shall file a form WC-102b Notice of Representation.  Should an attorney wish to withdraw from representation, he or she must file a WC-108b and otherwise follow the requirements of Board Rule 108(d) and (e).

At any point during the life of a claim, regardless of whether a hearing has been requested, the parties to the claim are entitled to request copies of certain documents from the other side by serving a form WC-102.  The documents are enumerated on the form, and include all Board forms in the party’s possession, all medical records, and wage records.  The party on whom the request is served must respond within thirty days, subject to penalties for failure to comply.  The WC-102 request allows for informal exchange of information and documents, particularly medical records and wage records.

Accepted / Non-Litigated Claims
As noted above, Georgia’s workers’ compensation system is designed by the Legislature to function in a specific streamlined fashion in order to promptly achieve its goals of providing medical care and expedited benefits under a no–fault scheme.  Employer/insurers must act quickly—within twenty-one days of awareness of an employee’s disability—to make a decision whether to accept or deny the claim.  This is not to say that all accepted claims will necessarily involve commencement of weekly income benefits.  Instead, there are also those situations where a claim is accepted on a “medical only” basis, where the employee is provided medical treatment under the Act, but is not entitled to weekly income benefits, typically in situations where the employee continues to work after the accident or otherwise has less than seven days of lost time from work.

When a claim has been accepted, one of the first—if not the very first—course of business is commencing medical treatment.  In accepted claims, employers are required to furnish employees medical benefits, which include “such medical, surgical, and hospital care and other treatment, items, and services which are prescribed by a licensed physician, including medical and surgical supplies, artificial members, and prosthetic devices and aids damaged or destroyed in a compensable accident.”  O.C.G.A. §34-9-200(a).  The term “physician” includes any person licensed to practice a healing art, which means that, in addition to medical doctors, chiropractors, osteopaths, and psychologists are considered “physicians.”  O.C.G.A. §34-9-201(a).  After the employee gives the employer notice of an injury, the employer should    present the employee with or direct the employee to the panel of physicians, for the employee to select a provider as the “authorized treating physician” (ATP) in control of the employee’s medical care.  The employer is required to take all reasonable measures to ensure that employees understand the function  of  the panel and the right to select a physician from the panel, and to provide appropriate assistance in contacting a panel provider when necessary.  O.C.G.A §34-9-201(c)(1)(2).

The claimant’s attorney will want to immediately verify with the injured worker that they were timely shown, explained and directed to a valid posted panel of physicians. If so, the claimant is entitled to seek treatment from the panel immediately. As such, you need to immediately request, in writing, a copy of the panel from the employer and/or insurer (assuming a valid panel exists pursuant to O.C.G.A. §34-9-201(b)(see below).

This is a critical part of the claim for the claimant’s attorney.  The ATP (authorized treating physician) controls the claimant’s ability to receive indemnity benefits, for any time missed from work, if the physician determines the claimant is disabled from working. The ATP controls the claimant’s medical care and ability to secure future medical treatment.  As a claimant’s attorney, it is imperative that you “choose” wisely and try to make the most informed decision possible, when picking the ATP from the employer/insurer’s posted panel of physicians.

Medical Disputes in Accepted Claims
It is easy for an accepted claim to bog down very early on in a quagmire of medical issues and disputes revolving around the panel of physicians (the panel) and initial medical treatment.  Such issues may include disputes over whether the panel is valid, whether specialized care is needed due to the nature of the injury, or otherwise agreeing on the designation of an ATP other than those providers listed on the panel.  Because the workers’ compensation system is designed to facilitate prompt access to medical care, it is important to work with the other side and in such situations an expedited conference call with an administrative law judge (ALJ) may be of benefit to get the medical on track.

While the variety of medical issues runs the gamut from the mundane to the truly bizarre, there are several specific types of disputes regarding medical treatment that frequently arise in accepted claims:

The Panel of Physicians
The traditional panel of physicians must include at least six physicians or professional associations of physicians.  A panel must include at least one orthopedist and one minority physician, and no more than two physicians from industrial clinics.  O.C.G.A. §34-9-201(b); Board Rule 201(a).  In situations where the employer fails to meet the statutory requirements for maintaining a valid panel or allowing the employee to select a doctor from the panel, the employee may select as ATP a physician who is not listed on the panel.  O.C.G.A. §34-9-201(f).  Accordingly, disputes often arise as to whether the panel is valid, focusing on whether a listed doctor has retired or moved out of state, or whether a doctor’s office has relocated.  An employee challenging the validity of a panel of physicians must prove that the panel violates the provisions of O.C.G.A. §34-9-201.  Board Rule 201(a)(1).

Changing ATPs
The choice of authorized treating physicians is not permanent, and the employee may make one change from that physician to another physician listed on the panel, without approval of the employer and without an order of the Board.  O.C.G.A. §34-9-201(b)(1); Board Rule 201(c).  Even after an employee changes from one panel physician to another, the employee may change ATPs again, either upon agreement by the parties or  by order of the Board based on a formal request  to which the opposing party may object (by filing Form WC-200b Request/Objection for Change of Physician).  When the parties agree on a new ATP, a form WC-200a should be filed with the Board.  It should be noted that the ATP may arrange for any consultation, referral, and other specialized medical services as required, without prior authorization of the Board.  However, any such referral physician shall not be permitted to arrange for additional referrals, barring agreement by the parties or Board order.

Preauthorization of Medical Treatment
An ATP may request advance authorization from the employer/insurer for treatment or testing, and will do so by sending over a form WC-205, Request for Authorization of Treatment or Testing by Authorized Medical Provider.  This formal request for preauthorization is not required, but when utilized it requires the employer/insurer to respond within five business days of receipt—and if the employer/insurer fails to respond within five business days, the treatment or testing specified in the WC-205 is deemed pre-approved.  Board Rule 205(b)(3). This rule is an excellent tool that can be utilized by the Employee’s attorney to expedite treatment for the injured worker.   However, even in those situations where the employer/insurer fails to timely respond, the employee must still prove that the medical care relates to the on-the-job injury.  Selective HR Solutions, Inc. v. Mulligan, 289 Ga. 753, 716 S.E.2d 150 (2011).

Expedited Conference Calls
The parties to a workers’ compensation claim are presented with a range of options for addressing disputes prior to, or as an alternative to, a full-blown evidentiary hearing.  These options include filing motions via Board Rule 102 and the WC-102D (Motion/Objection to Motion) form, requesting mediation, or utilizing the relatively recent option of requesting an expedited conference call with an ALJ.

Though not expressly addressed in the Act or Board Rules, expedited conference calls are contemplated by the Board on its website, at https://sbwc.georgia.gov/expedited-resolution-issues.  Under the heading of “Expedited Resolution of Issues,” the Board provides for the process as follows:

Attorneys may call the Board to request a conference call with the ALJ assigned to the claim to address the resolution of a medical or other issue that has not been controverted and that should be capable of resolution without an evidentiary hearing. These issues may include, but are not limited to: problems obtaining authorization to treat with a panel or other authorized provider; problems obtaining medication prescribed by the authorized provider; authorization for diagnostic testing recommended by the authorized provider; unpaid medical bills; or accidental or improper suspension of benefits. This process should not be used for change of physician requests or other issues likely to require an evidentiary hearing. If an ALJ is assigned to the claim, please call the office of the ALJ to schedule the conference. You may determine whether an ALJ is assigned to the claim by checking the file in ICMS. If, and only if, there is not an ALJ assigned to the claim, please call 404 656-2939, and your concern will be referred to the appropriate ALJ. Once a conference call is scheduled and the parties are notified by email to initiate the call, parties may face penalties for failing to appear or to provide advance notice of at least 24 hours as to the reason for their unavailability. All parties are encouraged to work together with the judges’ offices to schedule calls at times acceptable to all parties. If a call is requested, the opposing party must participate unless excused by the ALJ.

This process exemplifies the unique way in which the Board facilitates communication between the parties and a judge, in order for the parties to immediately address issues, obtain clarity, and move the claim forward.  Rather than file a WC-14 Hearing Request and wait several months through a course of written discovery and at least one deposition, the parties may address certain issues in a matter of days.

As noted by the Board, the scope of an expedited conference call is limited to those issues that may be resolved without a full-blown evidentiary hearing.  Thus disputes over changes in condition, controverts, or average weekly wage will likely not be addressed, and the Board will address change of physician requests.  On the other hand, a host of medical-related issues may properly be addressed, including authorization to treat with medical providers, problems with prescribed treatment or testing, and issues with payment of medical bills

Oftentimes the reality of the situation is that, at this relatively early stage in the case, the parties are not on equal footing with information and records, so that one party does not have the medical report or prescription at issue in the call.  Even so, the request for the expedited conference call can serve the purpose of moving the claim forward, by forcing the parties to review the matter—and sometimes can simply achieve the result of an adjuster forwarding the file to defense counsel.  As noted by the Board, when an expedited conference call has been requested and scheduled, the parties (ordinarily through counsel) must attend the call, and may face penalties for failing to do so.

During the conference call, if the ALJ determines that a ruling cannot be made without a review of evidence, the ALJ may direct the moving party to file a written motion or to request a hearing.  If the ALJ issues a ruling based on the conference call, it is within the discretion of the ALJ to issue a written order as well.

Motions In Accepted Claims
As with a request for an expedited conference call, any party to a claim may file a motion at almost any point during the course of a compensable claim.  In accepted claims, motions typically involve requests related to providing medical treatment or paying income benefits.  A party may file a motion to change physicians, request specific treatment, or obtain payment or reimbursement for treatment, prescriptions, or mileage.  An employee may file a motion to commence (recommence) benefits or an employer file a motion to suspend benefits, including on an interlocutory basis.

Regardless of the type of motion, the moving party must confer with the opposing party, or counsel if the party is represented, in a good-faith effort to resolve the matters.  Board Rule 102(D)(2).  As with many disputes in litigation, the good faith demand may accomplish the goal, or enough of the goal, so as to make the process and effort of the motion unnecessary.

Once the good faith demand has been made and the dispute not resolved, the moving party must file the motion on ICMS via use of a form WC-102D, with a brief and exhibits attached.  The entire filing must be limited to fifty pages unless otherwise approved by the Board or an ALJ.  Board Rule 102(D)(1).  The party opposing the motion must similarly file its own WC-102D, along with a brief and exhibits, within fifteen days of the date of the certificate of service on the underlying request.

In workers’ compensation motion practice, pleadings must be accompanied by some form of evidence. Facts stated in briefs are not evidence and cannot be the basis for a decision. Rheem Mfg. Co. v. Jackson, 254 Ga. App. 454, 562 S.E.2d 524 (2002). Therefore, motions and objections to motions must include supporting documentation, including but not limited to medical records, affidavits and/or deposition excerpts.   Judicial notice and stipulations are also valid forms of evidence, and, by their economy and simplicity, perfect for motion and response pleadings.  Whatever form of evidence is used, leave as few unsupported allegations in the brief as possible.

After reviewing the motion and objection, a judge may  determine that the factual disputes involved require an evidentiary hearing—thus denying the motion.  Whether the fifty-page limit is insufficient for the voluminous medical file, whether live witness testimony would be needed, or whether the parties otherwise need to present evidence, testimony, and post-hearing briefs, the judge may act out of an abundance of caution and fairness to all parties, and defer the resolution to a hearing, denying the motion.

If the parties are able to resolve the issue in whole or in part while the motion is pending before the ALJ, or if a ruling on the motion is no longer necessary or desired, the attorneys are required to notify the ALJ immediately by telephone and, if so instructed, by written or email confirmation.  The failure to do so without good cause may result in the assessment of civil penalties or assessed attorney’s fees.  Board Rule 102(D)(4).

When an ALJ issues an order in a case in which the merits of the claim are still pending, namely whether an employee qualifies for workers’ compensation benefits, the order is not final but interlocutory in nature and interlocutory appeal procedures must be followed. Pace Construction Corporation v. Northpark Associations, L.P., 215 Ga. App. 438, 450 S.E.2d 828 (1994). A party may immediately appeal a non-final order, without waiting for final resolution of the claim, if the order is certified by the ALJ.  O.C.G.A. §34-9-102(c) and Board Rule 103(d) grant the ALJ discretionary, not mandatory, authority to certify for immediate review orders that are of such importance that immediate review should be had by the Appellate Division. The Appellate Division obtains jurisdiction only if the order is certified by the administrative law judge and an appeal is filed with the Appellate Division within 20 days of the order. O.C.G.A. §34-9-103(a); Board Rule 103(d). A party seeking to appeal an interlocutory order should send a written request for a certificate of immediate review to the ALJ who issued the order, with a copy to the opposing party. The appealing party also should call the judge’s office to alert the judge to the pending request for a certificate of immediate review to ensure the certificate is issued within 20 days of the order so that a timely appeal may be filed.

Pre-Trial Issues in Litigated Claims
In addition to or in lieu of requesting an expedited conference call or filing a motion, a party may file a form WC-14 Request for Hearing, which places the claim on an ALJ’s hearing calendar and commences litigation.  WC-14 hearing requests may be filed by any party to the claim, and there may be multiple pending WC-14 hearing requests at any given time, as new issues arise.  The WC-14 must specify all issues which the party seeks to have adjudicated, such as all benefits to which an employee seeks entitlement.  A party’s failure to provide another party with sufficient notice that an issue will be tried at a hearing may subject the case to remand.  Howard v. Peachbelt Health and Rehab Center, 314 Ga. App. 319, 723 S.E.2d 718 (2012).  A request for hearing by an employee will be considered only after the time required of the employer/insurer to make the first payment of income benefits has expired as provided in O.C.G.A. § 34-9-221.  Board Rule 61(b)(11).

As discussed above, parties are entitled to informal discovery at any point in a claim, via the exchange of information and documents through a form WC-102 request.  Once a hearing has been requested and is pending before an ALJ, the parties may conduct formal written discovery.  Board Rule 102(F)(2).  Discovery in workers’ compensation cases is governed and controlled by the Georgia Civil Practice Act.  O.C.G.A. § 34-9-102(d)(1).

When discovery disputes arise, Rule 102(D)(2)’s good faith conference applies as a prerequisite before the filing of any motion.  As a general practice pointer, Georgia’s workers’ compensation bar is relatively small and collegial, and attorneys will often have multiple cases against each other, sometimes simultaneously.  The result of this is that, simply put, what goes around comes around.  Fortunately, this frequently means that counsel can reach agreement on basic courtesies and niceties; for example, depositions are scheduled upon agreement of counsel and the witness, as opposed to by unilateral notice.  Of course, this is not to say that discovery disputes do not arise nor that they can be resolved without having to involve the ALJ.  Common discovery disputes that are addressed by motion include motions to compel production of documents or medical records including correspondence to doctors, motions to compel and for protective order relating to an adjuster’s claim file or claim notes, motions to compel production of an employee’s prior claims information or records, and motions to compel and for protective order involving surveillance.

Ordinarily, a hearing will not go forward on the first setting, and often not on the second setting either, as the parties require time to fully conduct discovery and develop their evidence.  However, as additional hearing settings approach, many times one party will be ready to proceed with the hearing while the other party will request a continuance to allow for receipt of outstanding discovery responses, a long-awaited medical record, or some other piece of evidence that is important to that party’s case.  In these situations, the parties will arrange for a conference call with the ALJ, to address the one side’s request for a continuance and the other side’s basis for opposing it.  Please be aware that, pursuant to Board Rule 102(C)(1)(a), the parties must notify the ALJ of the request for a conference call by no later than 2:00 PM on the business day immediately before the scheduled hearing.  There is no uniform procedure or set rules for these pre-hearing conference calls with the judge.  From a practical standpoint, counsel should be prepared to explain the party’s position including the basis for requesting or opposing a continuance, as well as have a good working knowledge of the case status, pending issues, and outstanding discovery.

Conclusion
The Georgia workers’ compensation system has been deliberately and carefully designed to streamline the provision of medical treatment and weekly benefits or the determination of compensability and claim issues.  To that end, the parties to a claim have access to an ALJ or the Board at all times during the course of a claim, regardless of whether the matter is in litigation.  Parties may request an expedited conference call to address preliminary medical issues and other matters that do not call for an evidentiary hearing.  When disputes arise during a litigated or non-litigated claim, the parties may file motions and submit legal briefs and limited evidence; while a judge will necessarily be required to rule on discovery disputes, other issues that require more detailed presentation of evidence and live witness testimony may be deferred to a hearing.