November 10, 2010

The Reduction of Income Benefits Under O.C.G.A. § 34-9-104

By Alissa Atkins

On October 18, 2010, the Court of Appeals of the State of Georgia revisited the case of Imerys Kaolin v. J. W. Blackshear (A10A1216). In Blackshear, the Court of Appeals addressed O.C.G.A. § 34-9-104 which allows an employer to unilaterally convert an injured worker from temporary total disability (TTD) benefits to temporary partial disability (TPD) benefits once the authorized treating physician releases the employee to return to work with restrictions. However, the employer can only do so if certain notice requirements are met, specifically:

Within 60 days of the employees’ release to return to work with restrictions or limitations, the employer shall provide notice to the employee . . . that he or she has been released to work with limitations or restrictions . . . . Whenever an employer seeks to convert an employee from benefits for total disability to benefits for partial disability as provided in this paragraph, such employer may convert the benefits unilaterally by filing the form indicating the reason for the conversion as prescribed by rule of the Board. O.C.G.A. § 34-9-104(a)(2).

In Blackshear, the claimant injured his hands at work in 2001. He began receiving TTD benefits and was released to return to work with restrictions in June 2001. Based on this release, the employer/insurer informed the claimant in January 2002 that his TTD benefits would be reduced to the TPD level effective June 4, 2002. However, this did not occur. Instead, the employer/insurer obtained a new release from a referral physician on December 31, 2002, based on an evaluation performed in August 2002. The employer/insurer notified the claimant on January 14, 2003 that his benefits would be reduced from TTD to TPD on December 31, 2003. The employer actually reduced benefits in January 2004.

For the next several years the claimant continued to draw TPD benefits. Once those benefits expired in 2008 by operation of law, the claimant requested a recommencement of TTD benefits, indicating that he had never been properly notified of the unilateral reduction of benefits from TTD to TPD pursuant to O.C.G.A. § 34-9-104(a)(2). Finding that the employer did not notify the claimant of the anticipated reduction within 60 days of the original release on June 11, 2001, the administrative law judge reinstated the claimant’s TTD benefits and awarded them back to the date of the reduction in January 2004. The Court of Appeals found the notice provided by the employer was invalid “because it was issued more than 60 days from the time the restrictions were ‘determined.’” Accordingly, the Court of Appeals found that the reduction from TTD benefits to TPD benefits was improper.

This ruling makes it clear more than ever that employers and insurers need to follow the precise rules of O.C.G.A. § 34-9-104 and Board Rule 104. Specifically, (1) a WC-104 must be completed no later than 60 days of the authorized treating physician’s release of the claimant to work with restrictions; (2) the medical report establishing the claimant was released to light-duty work must be attached to the WC-104; (3) a copy of the WC-104 and medical report must be served upon the claimant and his attorney, if represented; and (4) once the claimant remains out of work for 52 consecutive weeks/78 aggregate weeks the employer/insurer must file a WC-2 reflecting the reduction of benefits and attach the WC-104 at that time.

If you have questions or comments, please reply to this blog post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or at

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