HB1355: HB1355 Workers' compensation; update law on experience modification factors, refusal of suitable employment procedures, and certain benefits

26 LC 52 1040 House Bill 1355 By: Representative Werkheiser of the 157th A BILL TO BE ENTITLED AN ACT To amend Chapter 9 of Title 34 of the Official Code of Georgia Annotated, relating to1 workers' compensation, so as to update workers' compensation la w on experience2 modification factors, refusal of suitable employment procedures , and certain benefits; to3 prohibit certain accidents from affecting an employer's experie nce modification factor; to4 prohibit certain accidents from being used to surcharge, cancel , o r d e c l i n e t o r e n e w a n5 employer's workers' compensation insurance policy; to provide for rules and regulations; to6 provide for a referral physician to release an employee to retu rn to work; to provide for7 procedures when an injured employee is unable to perform a prof fered job; to provide for8 petitions, notices, teleconferences, and signed sworn statements; to permit an interlocutory9 order; to increase weekly benefits for a maximum weekly wage co mpensation for total10 disability; to increase weekly benefits for a maximum weekly wa ge compensation for11 temporary partial disability; to increase the maximum amounts for certain death benefits; to12 repeal conflicting laws; and for other purposes.13 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:14 H. B. 1355 - 1 - 26 LC 52 1040 SECTION 1.15 Chapter 9 of Title 34 of the Official Code of Georgia Annotated , relating to workers'16 compensation, is amended in Article 4, relating to insurance of compensation liability17 generally, by revising Code Section 34-9-137, relating to consi derations in employer's18 experience modification factor, as follows:19 "34-9-137.20 (a) Whenever an experience modification factor is applied to the premium of an21 employer's policy of workers' compensation insurance, consideration shall be given to:22 (1) Any amounts recovered by such employer or its insurer purs uant to Code23 Section 34-9-11.1, relating to rights of action against third parties and subrogation; and24 (2) Code Section 34-9-360, relating to reimbursements from the Subsequent Injury Trust25 Fund. In addition, the insurer shall not include in the comput ation of such factor any26 penalties which were incurred pursuant to this chapter by the actions of the insurer or its27 representative.28 (b) No experience modification factors shall be affected, and no insurer shall surcharge the29 premium of an employer's policy of workers' compensation insurance or cancel or decline30 to renew such policy, as a result of the employer's or its empl oyee's involvement in a31 multivehicle accident when such employer or employee was not at fault in such accident. 32 As used in this subsection, the term 'not at fault' means less than 50 percent at fault.33 (c) The board and the Commissioner of Insurance shall promulga te such rules and34 regulations as necessary to implement the provisions of this Code section."35 SECTION 2.36 Said chapter is further amended in Part 3 of Article 6, relating to limitations on payment of37 compensation, by revising Code Section 34-9-240, relating to ef fect of refusal of suitable38 employment by injured employee and attempting or refusing to at tempt work with39 restrictions, as follows:40 H. B. 1355 - 2 - 26 LC 52 1040 "34-9-240.41 (a) If an injured employee refuses employment procured for him or her and suitable to his42 or her capacity, such employee shall not be entitled to any compensation, except benefits43 pursuant to Code Section 34-9-263, at any time during the conti nuance of such refusal44 unless in the opinion of the board such refusal was justified.45 (b) Notwithstanding the provisions of subsection (a) of this Code section, if the authorized46 treating physician or a referral physician releases an employee to return to work with47 restrictions and the employer tenders a suitable job to such em ployee within those48 restrictions, then:49 (1) If such employee attempts the proffered job for eight cumu lative hours or one50 scheduled workday, whichever is greater, but is unable to perform the job for more than51 15 t e n working days, then weekly benefits shall be immediately reinst ated, and the52 burden shall be upon the employer to prove that such employee i s not entitled to53 continuing benefits the employee may, within ten days of such attempt, petition the board54 for an order immediately reinstating weekly benefits. Such pet ition shall be filed on a55 form prescribed by the board and shall include a sworn statement by the employee stating56 the reason or reasons such employee is unable to perform such proffered job. Upon the57 filing of such petition, the board shall issue a notice of a sh ow-cause teleconference58 before an administrative law judge to be scheduled at a date and time not more than five59 business days from the date of the petition. The employer may submit a sworn statement60 in response to the employee's petition, and the burden shall be upon the employer to show61 good cause as to why the employee is not entitled to continuing benefits. Following the62 teleconference, the administrative law judge may issue an interlocutory order suspending63 or reinstating weekly benefits pending a hearing; or64 (2) If such employee attempts the proffered job for less than eight cumulative hours or65 one scheduled workday, whichever is greater, or refuses to attempt the proffered job, then66 the employer may unilaterally suspend benefits upon filing with the board the appropriate67 H. B. 1355 - 3 - 26 LC 52 1040 form with supporting documentation of the release to return to work with restrictions by68 the authorized treating physician or a referral physician , the tender of a suitable job69 within those restrictions, and a statement that such employee did not attempt the proffered70 job. Under those circumstances, the burden shall shift to the employee to prove71 continuing entitlement to benefits."72 SECTION 3.73 Said chapter is further amended in Article 7, relating to compensation schedules, by revising74 Code Section 34-9-261, relating to compensation for total disability, as follows:75 "34-9-261.76 While the disability to work resulting from an injury is temporarily total, the employer shall77 pay or cause to be paid to the employee a weekly benefit equal to two-thirds of the78 employee's average weekly wage but not more than $800.00 $900.00 per week nor less79 than $50.00 per week, except that when the weekly wage is below $50.00, the employer80 shall pay a weekly benefit equal to the average weekly wage. T he weekly benefit under81 this Code section shall be payable for a maximum period of 400 weeks from the date of82 injury; provided, however, that in the event of a catastrophic injury as defined in83 subsection (g) of Code Section 34-9-200.1, the weekly benefit under this Code section shall84 be paid until such time as the employee undergoes a change in condition for the better as85 provided in paragraph (1) of subsection (a) of Code Section 34-9-104."86 SECTION 4.87 Said chapter is further amended in said article by revising Code Section 34-9-262, relating88 to compensation for temporary partial disability, as follows:89 "34-9-262.90 Except as otherwise provided in Code Section 34-9-263, where th e disability to work91 resulting from the injury is partial in character but temporary in quality, the employer shall92 H. B. 1355 - 4 - 26 LC 52 1040 pay or cause to be paid to the employee a weekly benefit equal to two-thirds of the93 difference between the average weekly wage before the injury an d the average weekly94 wage the employee is able to earn thereafter but not more than $533.00 $600.00 per week95 for a period not exceeding 350 weeks from the date of injury."96 SECTION 5.97 Said chapter is further amended in said article by revising Code Section 34-9-265, relating98 to compensation for death resulting from injury and other cause s, penalty for death from99 injury proximately caused by intentional act of employer, and p ayment of death benefits100 where no dependents found, as follows:101 "34-9-265.102 (a) When an employee is entitled to compensation under this chapter for an injury received103 and death ensues from any cause not resulting from the injury f or which he or she was104 entitled to compensation, payments of the unpaid balance for such injury shall cease and105 all liability therefor shall terminate.106 (b) If death results instantly from an accident arising out of and in the course of107 employment or if during the period of disability caused by an a ccident death results108 proximately therefrom, the compensation under this chapter shall be as follows:109 (1) The employer shall, in addition to any other compensation, pay the reasonable110 expenses of the employee's burial not to exceed $7,500.00 $10,000.00. If the employee111 leaves no dependents, this shall be the only compensation;112 (2) The employer shall pay the dependents of the deceased employee, which dependents113 are wholly dependent on his or her earnings for support at the time of the injury, a weekly114 compensation equal to the compensation which is provided for in Code Section 34-9-261115 for total incapacity;116 (3) If the employee leaves dependents only partially dependent on his or her earnings for117 their support at the time of the injury, the weekly compensation for these dependents shall118 H. B. 1355 - 5 - 26 LC 52 1040 be in the same proportion to the compensation for persons wholl y dependent as the119 average amount contributed weekly by the deceased to the partial dependents bears to the120 deceased employee's average weekly wages at the time of the injury; and121 (4) When weekly payments have been made to an injured employee before his or her122 death, compensation to dependents shall begin on the date of the last of such payments;123 but the number of weekly payments made to the injured employee under Code124 Section 34-9-261, 34-9-262, or 34-9-263 shall be subtracted fro m the maximum 400125 week period of dependency of a spouse provided by Code Section 34-9-13; and in no126 case shall payments be made to dependents except during dependency.127 (c) The compensation provided for in this Code section shall b e payable only to128 dependents and only during dependency.129 (d) The total compensation payable under this Code section to a surviving spouse as a sole130 dependent at the time of death and where there is no other dependent for one year or less131 after the death of the employee shall in no case exceed $320,000.00 $360,000.00.132 (e) If it shall be determined that the death of an employee was the direct result of an injury133 proximately caused by the intentional act of the employer with specific intent to cause such134 injury, then there shall be added to the weekly income benefits paid to the dependents, if135 any, of the deceased employee a penalty of 20 percent; provided , however, such penalty136 in no case shall exceed $20,000.00. For the purpose of this subsection, an employer shall137 be deemed to have intended an injury only if the employer had actual knowledge that the138 intended act was certain to cause such injury and knowingly disregarded this certainty of139 injury. Nothing in this subsection shall limit the effect of Code Section 34-9-11.140 (f) Each insurer or self-insurer which, in a compensable death case, finds no dependent or141 dependents qualifying to receive dependency benefits shall pay t o t h e S t a t e B o a r d o f142 Workers' Compensation one-half of the benefits which would have been payable to such143 dependent or dependents or the sum of $10,000.00, whichever is less. All such funds paid144 to the board shall be deposited in the general fund of the stat e treasury. If, after such145 H. B. 1355 - 6 - 26 LC 52 1040 payment has been made, it is determined that a dependent or dep endents qualified to146 receive benefits exist, then the insurer or self-insurer shall be entitled to reimbursement by147 refund for moneys collected in error."148 SECTION 6.149 All laws and parts of laws in conflict with this Act are repealed.150 H. B. 1355 - 7 -