Legislative Summary: 2019 Workers’ Compensation Bill (S.B.135)

By Frank R. McKay

Georgia continues to be recognized as one of the top states in the nation for business. This recognition is due, in part, to our Workers’ Compensation system, which provides equitable protections to both injured workers and employers. Without a doubt, the pending legislative changes will assist in strengthening Georgia’s economy and its standing as a business-friendly state while preserving the exclusive remedy and grand bargain of the Workers’ Compensation Act.

Likewise, these changes will ensure that injured workers continue to receive indemnity benefits and medical care that align with both the humanitarian spirit and the ultimate purposes of the Act.

Last October members of the State Board of Workers’ Compensation’s Advisory Council met to discuss possible legislation for the 2019 Legislative Session. Representatives from labor, businesses, both insured and self-insured employers, and the medical community agreed upon three primary areas for legislation in 2019.

First, it was recognized that Georgia has the second lowest maximum temporary total disability rate in the country and there has not been an increase in three years. A goal was stated to try and keep the maximum disability rate at approximately two-thirds of the state’s private sector average weekly wage. SB 135 was drafted to increase the statutory maximum weekly amounts an injured worker may receive for temporary total disability (“TTD”), temporary partial disability (“TPD”) and permanent partial disability (“PPD”) benefits. Pursuant to SB 135’s changes to O.C.G.A. § 34-9-261, the statutory maximum weekly TTD rate will increase from $575.00 to $675.00. Similarly, under O.C.G.A. § 34-9-262, the statutory maximum weekly TPD rate will increase from $383.00 to $450.00 and the language in O.C.G.A. § 34-9-265 remains unchanged. The new rates will apply for all dates of accident and injuries occurring on or after July 1, 2019.

SB 135 also increases the total amount of maximum compensation payable to a surviving spouse as the sole dependent of a deceased injured worker. Pursuant to O.C.G.A. § 34-9- 265(d), a surviving spouse who is also the sole dependent of a deceased employee is entitled to no more than $230,000.00. This amount will

increase to $270,000.00, effective July 1, 2019 (the 400-week maximum in O.C.G.A. § 34-9-265(b)(4) times $675 equals $270,000).

Second, in 2013, O.C.G.A. § 34-9-200(a)(2) was added to create a 400-week cap on all medical benefits for all injuries occurring on or after July 1, 2013 that are not designated catastrophic. This year, O.C.G.A. § 34-9-200(a) (3)(A) is being added to the statute. Subsection 200(a)(3)(A) provides that, in non-catastrophic cases, certain medical treatment, care, services, and items prescribed by an authorized physician are not subject to the 400-week cap on medical benefits. In particular, “maintenance, repair, revision, replacement, or removal of” any of the following medical items is excluded from the 400-week cap for non-catastrophic injuries: i) prosthetic device; ii) spinal cord stimulator or intrathecal pump device; or iii) durable medical equipment, orthotics, corrective eyeglasses, or hearing aids. To be excluded from the 400- week cap on medical benefits, the medical items listed in subsection 200(a)(3)(B) must have been “originally furnished within 400 weeks of the date of injury or occupational disease”. The items must also be prescribed by “an authorized physician”. Additionally, a new subsection 200(a)(3)(B) has been added to define the terms “durable medical equipment” and “prosthetic device”.

Third and last, SB 135 changes provisions regarding eligibility for appointment to the offices of Director Emeritus (O.C.G.A. § 34-9-53) and Administrative Law Judge Emeritus (O.C.G.A. § 34-9-57). Essentially, the offices have been eliminated for future hires or appointments. However, individuals already eligible for these offices or individuals who are already in office as an administrative law judge or as a director of the board as of June 30, 2019 remain eligible for appointment to the offices of Director Emeritus or Administrative Law Judge Emeritus upon satisfying the provisions outlined in O.C.G.A. §§ 34-9-53 and -57.

Senate Bill 135 passed unanimously and unchanged through both chambers, the Senate and the House of Representatives. The legislation has been signed by Governor Kemp and will become effective July 1, 2019.

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Frank R. McKay is Chairman and Chief Appellate Court Judge, Georgia State Board of Workers' Compensation.