Davis v. Union Camp Corp.

Banke, Presiding Judge. The claimant in this workers’ compensation case suffered a disabling head injury on March 7, 1985, while at work for the employer. From that date until June 27, 1985, he continued to receive his full wages pursuant to a “Salary Continuation Plan” offered by the employer. After June 27, 1985, the benefits available to the claimant under the “Salary Continuation Plan” were exhausted, and the employer began paying him workers’ compensation benefits for temporary total disability. He requested a hearing on the following issues: (1) Whether he was entitled to receive workers’ compensation disability benefits in addition to his salary for the period between March 7 and June 27, 1985, and (2) whether the employer should have been required to implement certain treatment recommendations made by his rehabilitation specialist. The administrative law judge ruled against him on both these issues and also granted a request by the [37] employer for a change of physicians. These rulings were upheld on appeal to the full board and to superior court, whereupon we granted the claimant’s application for a discretionary appeal to this court. Held: 1. Strangely enough, the claimant’s position that he was entitled to receive disability benefits during the period after the accident when he was being paid his full salary pursuant to the “Salary Continuation Plan” appears to be well taken. Board Rule 220 (b), as it existed at the time in question, specified as follows: “An injured employee who receives regular wages during disability shall not be entitled to weekly benefits for the same period. The Form No. WC2 must state: ‘Employee elects to receive salary in lieu of weekly benefits.’ ” (Emphasis supplied.) (The rule was revised effective July 1, 1987, to specify that “[t]he Form WC1 or WC2” must contain the required statement). In St. Paul Fire &c. Ins. Co. v. Norman, 173 Ga. App. 198, 202 (2) (325 SE2d 810) (1984), this court held that, absent compliance with the board’s duly authorized rules, an employer was not entitled to a credit for salary paid to an employee in lieu of workers’ compensation disability benefits. See also State of Ga. v. Graul, 181 Ga. App. 573 (3) (353 SE2d 70) (1987), wherein this court upheld the board’s imposition of a civil penalty against an employer pursuant to OCGA § 34-9-18 (a), based on the employer’s failure to submit a Form WC2 reflecting that the claimant had made an election to receive annual and sick leave benefits in lieu of compensation. The employer in this case never filed a Form WC2. Soon after the accident, the employer did file a Form WC1, “Employer’s First Report of Injury,” on which the words, “Salary Continued” were typed. However, no disclosure was made on this or any other writing submitted to the board suggesting that the claimant had made an election to receive his regular salary in lieu of workers’ compensation benefits; and the claimant testified without dispute at the hearing on his claim that he had never in fact been asked to make such an election. On the basis of the foregoing authorities, we are consequently constrained to hold that the employer was not relieved of its obligation to pay disability benefits during the period it continued to pay the claimant his regular salary pursuant to the “Salary Continuation Plan.” We must reject the employer’s contention that because it filed a Form WC1, it was relieved, pursuant to board Rule 61 (b) (2), of any obligation to file a Form WC2 and thus of any obligation to specify that the claimant had made an election to receive salary in lieu of disability benefits. Rule 61 (b) (2) specifies in pertinent part, as follows: “Form WC2. Notice of Payment or Suspension of Benefits. Use Form WC1 to commence or suspend payment of weekly benefits when simultaneously filing an Employer’s First Report of Injury. For all [38] other cases, including any change in weekly benefits, classification or rating of disability, file Form WC2. . . We find nothing in this language which could properly be construed as permitting the employer to avoid the disclosure requirement of Rule 220 (b) by the simple expedient of filing a Form WCl rather than a Form WC2. Certainly, the filing of a Form WCl would not have such an effect under the current version of Rule 220 (b), which permits the disclosure to be made on either the Form WCl or the Form WC2, and we do not believe that it was intended to have such an effect under the former version of Rule 220 (b), either. Rather, we interpret the former version of Rule 220 (b) as having required the submission of a Form WC2 containing the required disclosure in all instances where credit was sought for salary paid in lieu of disability benefits. Accordingly, we hold that the employer in this case was not entitled to claim such a credit and that the board’s ruling to the contrary should have been reversed by the superior court. 2. The administrative law judge’s decision not to authorize implementation of the recommendations of the claimant’s rehabilitation specialist was based on the stated assumption that the specialist had recommended a residential treatment program for the appellant lasting from six to nine months. However, it appears without dispute from the record and from the transcript of the hearing that what the rehabilitation specialist in fact recommended was merely a 7-day period of hospitalization for detoxification and evaluation, to be followed by further professional recommendations. It appearing that the rejection of the rehabilitation specialist’s recommendations was based upon a mischaracterization of the nature of those recommendations, we hold that the superior court also erred in affirming this portion of the board’s award, and we direct that the case be remanded to the board for reconsideration of this issue. 3. No abuse of discretion has been established with respect to the board’s decision to grant the employer’s motion for a change of physicians. Accordingly, that portion of the board’s award was properly affirmed by the superior court. Judgment affirmed in part and reversed in part and case remanded with direction in part. Birdsong, C. J., McMurray, P. J., Pope and Benham, JJ., concur. Deen, P. J., Carley, Sognier, and Beasley, JJ., concur in part and dissent in part.