News & Resources

By: Casey B. Foreman

In Lamar v. Delta Air Lines, Inc., the Georgia Court of Appeals recently issued an opinion that invalidated the WC-104 utilized by the employer/insurer.  The WC-104 Notice to Employee of Medical Release to Return to Work with Restrictions or Limitations is completed once the employee is released by the authorized treating physician (ATP) to return to work under work restrictions. O.C.G.A. § 34-9-104 requires the employer/insurer to provide the WC-104 to the employee within 60 days of his release to work-restrictions. Once properly completed and served, the employer/insurer may unilaterally convert the employee’s income benefits from his TTD rate to the maximum TPD rate (currently $533.00) once restrictions have remained in place during which the employee receives TTD benefits for 52 consecutive weeks or 78 aggregate weeks. The requirements and steps are outlined in O.C.G.A. § 34-9-104 and Board Rule 104.

In Lamar, the ATP instructed the employee in his medical report “not to lift more than 15 pounds” as well as ordered “work conditioning physical therapy.” The employer/insurer attached this to the WC-104 and served the WC-104 to the employee within 60 days of the medical report. The employer/insurer utilized the WC-104 to convert the employee to TPD after the passage of 52 consecutive weeks. The Court of Appeals found the WC-104 invalid and conversion improper for primarily two reasons. One, the ATP’s report did not “specifically state that [the ATP] released Lamar back to work.”  The Court of Appeals found the ATP’s reference to physical limitations did not translate to work restrictions. They found further support by interpreting the order for work-conditioning physical therapy as a prerequisite from the ATP to release the employee to return to work. Two, the Court of Appeals took issue that the 15-pound weight limit originated from a prior appointment occurring more than 60 days before the WC-104 and (as found by the ALJ) represented a “mere restatement” in the medical report submitted with the WC-104.  As O.C.G.A. § 34-9-104 requires the WC-104 to be provided to the employee within 60 days of his release to work-restrictions, the Court of Appeals disagreed with the ATP’s and lower court’s reliance on a prior appointment outside this window. For these reasons, the Court of Appeals reversed the judgement of the lower courts and remanded to the State Board for consideration of attorney’s fees and issuance of an award consistent with their opinion.

The fact-pattern seen in Lamar is not unusual. Physicians often place “physical” restrictions without specifically listing such as “work” restrictions. Physicians often copy-and-paste work restrictions from their first report into subsequent reports. WC-104s are often filed under similar situations as seen in Lamar. Those WC-104s are now in jeopardy. To make matters worse, the invalidity of a WC-104 is typically not called into question until the time of conversion a year later.

The Court of Appeal emphasized the employer/insurer must strictly comply with O.C.G.A. § 34-9-104 and Board Rule 104 to unilaterally convert an employee to TPD.  Arguably, the Court of Appeals added requirements beyond the statutory language involved. Claim managers completing WC-104s should closely scrutinize the medical report attached to the WC-104 to avoid the pitfalls seen in Lamar. Specifically, our recommendations include:

• Closely review to confirm the medical report attached to the WC-104 explicitly states the employee is cleared to “return to work” and/or references “work-restrictions.” Seek clarification if the report only references physical restrictions.
• If possible, file the WC-104 based on the physician’s first report that places work restrictions. Although the Court of Appeals did not explicitly find this alone would invalidate a WC-104, this was clearly a factor and employers/insurers should make efforts to comply.  

While the WC-104 process remains a valuable tool to the employer/insurer, claimant’s attorneys will challenge the validity with increased frequency in light of the Lamar decision.  Please contact our attorneys if you encounter challenges or have specific questions.