Georgia Court of Appeals Tightens Requirements for Converting TTD to TPD Benefits Through Form WC-104
The Georgia Court of Appeals recently issued an opinion addressing when an employer/insurer may unilaterally convert temporary total disability (TTD) benefits to temporary partial disability (TPD) benefits by filing State Board Form WC-104.
Background: Form WC-104 and Its Requirements
An employer/insurer files a Form WC-104 when the employee’s authorized treating physician (ATP) has released the employee to return to work with restrictions. Once the WC-104 is filed, Georgia law permits the employer/insurer to unilaterally convert the employee’s income benefits from TTD to TPD after the employee has been released to restricted work for 52 consecutive weeks or 78 aggregate weeks. O.C.G.A. § 34-9-104(a). However, the WC-104 must meet several requirements under Board Rule 104(a) to be properly filed. One such requirement is that the employer/insurer must attach the ATP’s supporting medical report demonstrating that the employee is capable of performing work with restrictions. In addition, the WC-104 must be filed no later than 60 days after the date the ATP released the employee to work.
The Lamar Decision
In Lamar v. Delta Air Lines, Inc., the court of appeals focused on both of these requirements. The administrative law judge (ALJ) found the employer/insurer complied with O.C.G.A. § 34-9-104(a) and Board Rule 104(a) when it unilaterally reduced the employee’s benefits. That decision was affirmed by the Appellate Division and by the Superior Court of Fulton County. The court of appeals reversed, holding that benefits may not be reduced unless the medical report attached to the WC-104 “demonstrates on its face that the ‘employee is capable of performing work with restrictions.’”
The employee in Lamar sustained a lumbar spine injury. On August 14, 2023, the employer filed a WC-104, attaching a July 17, 2023 medical report from the ATP, Dr. Langenbeck. Under a section titled “Patient Instructions,” the report stated the employee should not lift more than 15 pounds. The employee’s TTD benefits were later converted to TPD benefits on July 17, 2024, pursuant to the WC-104. The court of appeals noted the report did not specifically state the employee was capable of performing “work” with restrictions. The court also pointed to the ATP’s recommendation for work conditioning, reasoning the ATP clearly believed the employee needed work conditioning to prepare for a return to work.
The court further noted the ALJ had relied on work restrictions from a prior medical provider and on the ATP’s earlier restrictions. It held the board may not consider reports completed more than 60 days before the WC-104 was filed. The court also observed the 15-pound lifting restriction had appeared in the ATP’s earlier reports. If that restriction had been enough to release the employee to work, the court stated the employer/insurer should have filed the WC-104 when the ATP first imposed it.
Analysis
Lamar reflects a stricter approach to deciding when income benefits may be unilaterally reduced through a WC-104 and its attached medical report. The court emphasized employers and insurers must strictly comply with O.C.G.A. § 34-9-104 before unilaterally reducing benefits and that public policy supports placing the burden of compliance on the employer.
The outcome is concerning because physicians do not always use clear and specific language in their work status reports. If a court later determines a physician’s work release was not worded clearly enough, a unilateral reduction in benefits may be deemed invalid, leaving the employer/insurer liable for past-due income benefits. Moreover, at least in Lamar, the court of appeals appeared willing to draw inferences about the ATP’s view of the employee’s work status from the work conditioning recommendation. At the same time, it declined to consider medical records dated more than 60 days before the filing that might have clarified the ATP’s intent.
Practical Takeaways for Employers and Insurers
- Confirm explicit return-to-work language. Make sure the medical report or work status attached to the WC-104 expressly states the employee can return to work with restrictions, not merely that the employee has physical restrictions.
- Seek clarification when needed. If a report is unclear about whether the employee can return to work, obtain clarification from the ATP before filing the WC-104 so the reduction in benefits will hold up.
- File promptly. If possible, file the WC-104 within 60 days of the first ATP report that clearly releases the employee to restricted work
In short, after Lamar, a WC-104 will hold up only if the attached ATP report clearly releases the employee to work with restrictions and the form is filed within 60 days of that release. Employers and insurers should review their WC-104 practices in light of Lamar.
The foregoing is not intended to be a comprehensive analysis of the full effect of these changes. Nothing in this notice should be construed as legal advice. This document is intended only to notify our clients and other interested parties about important recent developments. Every effort has been made to ascertain the accuracy of the information contained within this notice.
