• A Properly Timed Controvert and Deadlines under the Act
  • April 21, 2009 | Author: John C. Hillis
  • Law Firm: Swift, Currie, McGhee & Hiers, LLP - Atlanta Office
  • Georgia statutes and case law provide two basic methods to controvert a workers’ compensation claim in its entirety. Generally, one method of denying a claim applies to instances prior to the employer and insurer having commenced indemnity or weekly benefits, as set forth in O.C.G.A. § 34-9-221(d), while the other method applies to instances after the employer and insurer have commenced indemnity benefits, as set forth in O.C.G.A. § 34-9-221(h).

    With respect to the first manner of controverting a claim, O.C.G.A. § 34-9-221 (d) provides “[i]f the employer controverts the right to compensation, it shall file with the board, on or before the twenty-first day after knowledge of the alleged injury or death, a notice in accordance with the form prescribed by the board, stating that the right of compensation is controverted and stating the name of the claimant, the name of the employer, the date of the alleged injury or death, and the ground upon which the right to compensation is controverted.” Ideally, the employer or insurer would file and serve form WC-1 and WC-3 stating their intention to controvert a claim within 21-days of knowledge of the alleged injury. Thoroughly filling out the WC-1 and WC-3 should fulfill the employer’s and insurer’s obligation to provide the information set forth in the statute.

    What happens if you miss the 21-day deadline to file the WC-3 notice to controvert? The employer and insurer may be subject to monetary penalties or attorney’s fees for failing to file the notice in a timely fashion. However, as long as the employer and insurer have not started paying weekly benefits, the employer and insurer do not lose their right to controvert or defend the claim on substantive grounds. 

    When the employer and insurer have started paying weekly benefits, generally, the second method to controvert an entire claim applies. O.C.G.A. § 34-9-221(h) provides, “[w]here compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed with the board within 60 days of the due date of first payment of compensation.” This method is more complicated and comes with several pitfalls created by case law interpreting this statute.

    “Where compensation is being paid without an award,” refers to instances where the employer and insurer have voluntarily started paying weekly benefits. Generally, an employer and insurer are obligated to start paying benefits within 21 days of the date of first disability when an employee has been disabled for more than seven days. Usually, O.C.G.A. § 34-9-221(h) applies when the employer and insurer start properly paying benefits within the 21-day period, but a more detailed investigation may reveal questionable circumstances surrounding the accident after the 21-day period elapses.

    What if you make the decision to controvert after you have started paying weekly benefits without an award? First, you need to determine the deadline to file a notice to controvert under O.C.G.A. § 34-9-221(h). As a general rule, it is still safest to mark your calendar for 81 days after the date of accident to investigate a claim and make a determination about compensability.

    Second, you should prepare a WC-3 providing notice of your reason for controverting and a WC-2 providing notice to the employee that you are going to stop paying weekly benefits because the claim is being controverted. Next, you should file and serve the WC-3 and WC-2 forms simultaneously within 60 days of the due date of first payment of compensation. This is where the real complexity with case law interpreting O.C.G.A. § 34-9-221(h) arises. In Cartersville Ready Mix Co. v. Hamby, the Georgia Court of Appeals ruled that for an employer and insurer to be in the position to file a valid WC-3 controverting a claim after compensation has been paid without an award, it is essential that all benefits, including penalties, be properly paid prior to the filing of the controvert. Cartersville Ready Mix Co. v. Hamby, 224 Ga. App. 116, 479 S.E.2d 767 (1996). Therefore, if benefits owed are not paid through the time of the filing of the WC-3 and WC-2 under O.C.G.A. § 34-9-221(h), the employer and insurer lose their right to controvert the claim except upon the grounds of change in condition or newly discovered evidence. You should insure that you have paid all of the benefits owed through the time of the filing of the WC-3 and WC-2 to protect your right to controvert the claim because the newly discovered evidence standard is high and generally difficult to overcome.

    As you can imagine, not all circumstances fit neatly within the general rules above. Be sure to review your deadlines closely and fill out all forms thoroughly. Also, make sure you have investigated the claim before you make any weekly benefit payments, as the process for controverting the claim following commencement of income benefits becomes much more complicated.