Bill Text: GA HB1101 | 2009-2010 | Regular Session | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Workers' compensation; Self-insurers Guaranty Trust Fund; revise provisions
Spectrum: Slight Partisan Bill (Republican 5-2)
Status: (Passed) 2010-07-01 - Effective Date [HB1101 Detail]
Download: Georgia-2009-HB1101-Comm_Sub.html
Bill Title: Workers' compensation; Self-insurers Guaranty Trust Fund; revise provisions
Spectrum: Slight Partisan Bill (Republican 5-2)
Status: (Passed) 2010-07-01 - Effective Date [HB1101 Detail]
Download: Georgia-2009-HB1101-Comm_Sub.html
10 LC
36 1555S
The
House Committee on Industrial Relations offers the following substitute to HB
1101:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 9 of Title 34 of the Official Code of Georgia Annotated, relating
to workers' compensation, so as to provide for the publication of decisions of
the board; to provide for the entry and execution of judgment upon final orders
and decisions regarding the Self-insurers Guaranty Trust Fund; to modify the
notification period for revocation of a certificate of self-insurance; to revise
provisions relative to the Self-insurers Guaranty Trust Fund; to provide
immunity from liability for members of the board of trustees of the
Self-insurers Guaranty Trust Fund; to provide for related matters; to repeal
conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
9 of Title 34 of the Official Code of Georgia Annotated, relating to workers'
compensation, is amended by revising subsection (b) of Code Section 34-9-12,
relating to employer's record of injuries, availability of board records,
supplementary report on termination of disability, penalties, and routine
reports, as follows:
"(b)
The records of the board, insofar as they refer to accidents, injuries, and
settlements, shall not be open to the public but only to the parties satisfying
the board of their interest in such records and their right to inspect them.
The board shall provide data contained on Employers' First Report of Injury
forms reporting fatalities to the Georgia Department of Labor and the United
States Department of Labor for use in the Census of Fatal Occupational Injuries
Program. The board shall provide data to such other state and federal
governmental entities or departments as required by law. Under such reasonable
rules and regulations as the board may adopt, the records of the board as to any
employee in any previous case in which such employee was a claimant shall be
open to and made available to such claimant, to an employer or its insurance
carrier which is called upon to pay compensation, medical expenses, or funeral
expenses, and to any party at interest, except that the board may make such
reasonable charge as it deems proper for furnishing information by mail and for
copies of records.
Nothing in
this subsection shall prohibit the board or its designees from publishing
decisions of the board, provided adequate security measures have been taken to
protect the identity and privacy of the
parties."
SECTION
2.
Said
chapter is further amended by revising Code Section 34-9-106, relating to entry
and execution of judgment on settlement agreement, final order or decision, or
award and modification and revocation of orders and decrees, as
follows:
"34-9-106.
(a)
Any party in interest
in a matter
involving an injury may file in the
superior court of the county in which the injury occurred or, if the injury
occurred outside this state
or if the
matter does not involve an injury, in the
county in which the original hearing was had, a certified copy
of:
a
settlement agreement approved by the board or of a final order or decision of
the members or of an award of the members unappealed from or of an award of the
members affirmed upon appeal,
(1)
A settlement agreement approved by the board;
(2)
A final order or decision of the board;
(3)
An unappealed award of the board;
(4)
An award of the board affirmed upon appeal; or
(5)
Any final order or decision regarding the Self-insurers Guaranty Trust
Fund,
whereupon
the court shall render judgment in accordance therewith and notify the parties.
Such judgment shall have the same effect and all proceedings in relation thereto
shall thereafter be the same as though the judgment had been rendered in an
action duly heard and determined by such court; provided, however, that where
the payment of compensation is insured or provided for in accordance with this
chapter, no such judgment shall be entered nor execution thereon issued except
upon application to the court and for good cause shown.
(b)
Upon presentation to the court of the certified copy of a decision of the board
ending, diminishing, or increasing a weekly payment under the provisions of this
chapter, particularly of Code Section 34-9-104, the court shall revoke or modify
the order or decree to conform to such decision of the board."
SECTION
3.
Said
chapter is further amended by revising subsection (c) of Code Section 34-9-127,
relating to issuance by the board of certificate of self-insurance, review, and
revocation, as follows: "(c) The board may, upon at least
60
30
days' notice to the
employer, and
proof of receipt of same, and after a
hearing, revoke the certificate upon satisfactory evidence for such revocation
having been presented. At any time after such revocation, the board may grant a
new certificate to the employer upon
his
the
employer's petition."
SECTION
4.
Said
chapter is further amended by revising Article 10, relating to the Self-insurers
Guaranty Trust Fund, as follows:
"ARTICLE
10
34-9-380.
It
is the purpose of this article through the establishment of a guaranty trust
fund to provide for the continuation of workers' compensation benefits due and
unpaid, excluding penalties, fines, and attorneys' fees
assessed
against a participant, when a self-insured
employer becomes insolvent.
34-9-381.
As
used in this article, the term:
(1)
'Applicant' means an employee entitled to workers' compensation
benefits.
(2)
'Board' means the State Board of Workers' Compensation.
(3)
'Board of trustees' means the board of trustees of the fund.
(4)
'Fund' means the Self-insurers Guaranty Trust Fund established by this
article.
(5)
'Insolvent self-insurer' means a self-insurer who files for relief under the
federal Bankruptcy Act, a self-insurer against whom involuntary bankruptcy
proceedings are filed,
or
a self-insurer for whom a receiver is appointed in a federal or state court of
this or any other jurisdiction
and who is
determined, or
a self-insurer who is determined by the
board to be
insolvent
by
in default of
its workers' compensation obligations or requirements according
to rules and regulations promulgated by
the board of trustees and approved by the board.
(6)
'Participant' means a self-insurer who is a member of the fund and exclusive of
those entities described in Article 5 of this chapter.
(7)
'Self-insurer' means a private employer, including any hospital authority
created pursuant to the provisions of Article 4 of Chapter 7 of Title 31, the
'Hospital Authorities Law,' that has been authorized to self-insure its payment
of workers' compensation benefits pursuant to this chapter, except any
governmental self-insurer or other employer who elects to group self-insure
pursuant to Code Section 34-9-152,
or
captive insurers as provided for in Chapter 41 of Title 33, or employers who,
pursuant to any reciprocal agreements or contracts of indemnity executed prior
to March 8, 1960, created funds for the purpose of satisfying the obligations of
self-insured employers under this chapter.
(8)
'Trustee' means a member of the Self-insurers Guaranty Trust Fund board of
trustees.
34-9-382.
(a)
There is established a Self-insurers Guaranty Trust Fund for the sole purpose of
making payments in accordance with this article. The fund shall be administered
by an administrator appointed by the
chairman
chairperson
of the board of trustees with the approval of the board of trustees. All moneys
in the fund shall be held in trust and shall not be money or property of the
state or the participants
and shall be
exempt from levy, attachment, garnishment, or civil judgment for any claim or
cause of action other than for not making payments in accordance with this
article. The board of trustees shall be
authorized to invest the moneys of the fund in the same manner as provided by
law for investments in government backed securities.
(b)
All returns on investments shall be retained by the fund. The funds of the
Self-insurers Guaranty Trust Fund shall be for the purposes of compensating
employees or
their dependents who are eligible to
receive workers' compensation benefits from their employers pursuant to the
provisions of this chapter when, pursuant to this Code section, the board has
determined that compensation benefits due are unpaid or interrupted due to the
insolvency or
default of a participant. Moneys in the
fund may be used to compensate an employee
or his or her
dependents for any type of injury or
occupational disease or death, including medical or rehabilitation expenses
which are compensable under this chapter against a participant, and all claims
for related administrative fees, operating costs of the
board of
trustees
fund,
attorneys' fees incurred by the board of trustees or at its direction, and other
costs reasonably incurred by the board of trustees. Payment from the
Self-insurers Guaranty Trust Fund shall be made in accordance with this
chapter.
(c)
As a condition of self-insurance,
a
all
private
employer
employers,
except any governmental self-insurer or other employer who elects to group
self-insure pursuant to Code Section 34-9-152, captive insurers as provided for
in Chapter 41 of Title 33, or employers who, pursuant to any reciprocal
agreements or contracts of indemnity executed prior to March 8, 1960, created
funds for the purpose of satisfying the obligations of self-insured employers
under this chapter, must make application to and be accepted in the
Self-insurers Guaranty Trust Fund.
34-9-383.
(a)
Each member of the board of trustees shall be an employee of a participant. The
board of trustees shall consist of a chairperson and six trustees elected by the
participants. The board of trustees shall initially be appointed by the Governor
not later than August 1, 1990. Three of the initial trustees shall be appointed
for terms of office which shall end on January 1, 1993, and the chairperson and
the three other initial trustees shall be appointed for terms of office which
shall end on January 1, 1995. Thereafter, each trustee shall be elected to a
four-year term and shall continue to serve unless otherwise ineligible under
subsection (b) of this Code section. No later than 90 days prior to the end of
any member's term of office, the chairperson shall select a nominating committee
from among the participants to select candidates for election by the
participants for the following term. In the event the chairperson fails to
complete his or her term of office, a successor
will
shall
be elected by the board of trustees to fill the unexpired term of
office.
(b)
A vacancy in the office of any elected member of the board of trustees shall
occur upon the
member's resignation, death,
or
conviction of a
felony,
or when the
trustee's
employer no longer qualifies as a self-insured participant or the trustee is no
longer an employee of a participant. The board of trustees may remove any
member
trustee
from office on a formal finding of incompetence, neglect of duty, or malfeasance
in office. Within 30 days after the office of any elected member becomes vacant
for any reason, the board of trustees shall elect a successor to fill that
office for the unexpired term.
Failure to
fill the vacant office shall not invalidate any action taken by the board of
trustees provided that said action is taken pursuant to an affirmative vote of
not less than four trustees.
34-9-384.
The
board of trustees shall possess all powers necessary and convenient to
accomplish the objectives prescribed by this article, including, but not limited
to, the following:
(1)
Not later than 90 days from its appointment, the board of trustees must make and
submit to the board for approval such bylaws, rules, regulations, and
resolutions as are necessary to carry out its responsibilities, including, but
not limited to, the establishment of an application fee. The board of trustees
may carry out its responsibilities directly or by contract or other instrument
and may purchase such services, borrow money, purchase excess
or
liability insurance, levy
penalties,
and
fines, and
assessments and collect such funds as it
deems necessary to effectuate its activities and protect the members of the
board of trustees and its
administrator,
agents, and employees. The board of
trustees shall appoint, retain, and employ such persons as it deems necessary to
achieve the purposes of the board of trustees. All expenses incurred pursuant to
this provision shall be paid from the fund;
(2)
The board of trustees shall meet not less than quarterly and shall meet at other
times upon the call of the chairperson, issued to the trustees in writing not
less than 48 hours prior to the day and hour of the meeting, or upon a request
for a meeting presented in writing to the chairperson not less than 72 hours
prior to the proposed day and hour of the meeting and signed by at least a
majority of the trustees, whereupon the chairperson shall provide notice issued
in writing to the trustees not less than 48 hours prior to the meeting and shall
convene the meeting at the time and place stated in the request;
(3)
Four trustees shall constitute a quorum to transact business at any meeting, and
the affirmative vote of four trustees shall be necessary for any action taken by
the board of trustees. No vacancy shall otherwise impair the rights of the
remaining trustees to exercise all of the powers of the board of
trustees;
(4)
The board of trustees shall serve without compensation, but each member shall be
entitled to be reimbursed for necessary and actual expenses incurred in the
discharge of his or her official duties; and
(5)
The board of trustees shall have the right to bring and defend actions only in
the name of the fund.
Neither the
trustees nor their employers shall be
liable
The
administrator, the trustees, and the trustees' employers, agents, and employees
shall not be liable jointly or
individually for matters arising from or out of
the
their
conduct of the affairs of the fund
while acting
in the scope of their
employment.
34-9-385.
(a)
Any participant who files for relief under the federal Bankruptcy Act or against
whom bankruptcy proceedings are filed or for whom a receiver is appointed shall
file written notice of such fact with the board and the board of trustees within
30 days of the occurrence of such event.
(b)
Any person who files an application for adjustment of a claim against a
participant who
is in default
or has filed for relief under the federal
Bankruptcy Act or against whom bankruptcy proceedings have been filed or for
whom a receiver has been appointed must file a written notice of such fact with
the board and the board of trustees within 30 days of such person's knowledge of
the event.
(c)
Upon receipt of any notice as provided in subsection (a) or (b) of this Code
section, the board shall determine whether the participant is insolvent
or in
default according to procedures
established by the board of trustees and approved by the board. Such
determination shall be made within a reasonable time after the date the board
and board of trustees receive notification as provided in subsection (a) or (b)
of this Code section.
(d)
When a participant is determined to be
in default
or an insolvent self-insurer, the board of
trustees is empowered to and shall assume on behalf of the participant its
outstanding workers' compensation obligations excluding penalties, fines, and
claimant's attorneys' fees assessed
against the
participant pursuant to subsection (b) of
Code Section 34-9-108 and shall take all steps necessary to collect, recover,
and enforce all outstanding
securities
security,
indemnity, insurance, or bonds furnished by such participant guaranteeing the
payment of compensation provided in this chapter for the purpose of paying
outstanding obligations of the participant. The board
of
trustees shall convert and deposit into
the fund such
securities
security
and any amounts received under agreements of surety, guaranty, insurance, or
otherwise on behalf of the participant. Any amounts remaining from such
securities
security,
indemnity, insurance, bonds, guaranties, and sureties, following payment of all
compensation costs and related administrative
expenses
and fees of the board of trustees
including attorneys' fees, and following
exhaustion
collection
of all amounts assessed and received pursuant to subsections (a) and (d) of Code
Section 34-9-121 and any applicable rule of the board may be refunded by the
fund as directed by the board of trustees, subject to the approval of the board,
to the appropriate party one year from the date of final payment
and closure of
all claims, provided no outstanding
self-insured
liabilities remain against the fund
and the
applicable statute of limitations has
run.
(e)
The board
of trustees
fund
shall be a party in interest in all proceedings involving workers' compensation
claims against a participant whose workers' compensation obligations
have
been
are to
be paid or assumed by the
board of
trustees
fund
and shall be subrogated to the rights of the participant. In such proceedings
the board
of trustees
fund
shall assume and may exercise all rights and defenses of the participant,
including, but not limited to:
(1)
The right to appear, defend, and appeal claims;
(2)
The right to receive notice of, investigate, adjust, compromise, settle, and pay
claims; and
(3)
The right to investigate, handle, and controvert claims.
(f)
In any proceeding in bankruptcy in which the payment of benefits has been
stayed, the board of trustees, through a designated representative,
shall
may
appear and move to lift the stay so that the orderly administration of claims
can proceed.
The fund shall
be subrogated to the rights and claims of any claimant against a participant to
the extent of the payments made by the fund to the claimant and may pursue
recovery against the participant to the extent of the claims paid or to be
paid.
(g)
The board of trustees shall notify all employees who have pending claims against
a participant for workers' compensation benefits which are subject to the
provisions of this article of the name, address, and telephone number of the
party administering and defending their claim.
(h)
The board may, in its discretion, direct that the Self-insurers Guaranty Trust
Fund honor and pay, in whole or in part, the contractual fee arrangement between
an attorney and a claimant pursuant to subsection (a) of Code Section 34-9-108,
provided that application to honor the fee arrangement is made after notice
pursuant to subsection (g) of this Code section and subject to consideration of
objections by any party.
(i)
No provision of this Code section shall impair any claims in the insolvent
self-insurer's bankruptcy by
the board of
trustees, any employee, or any provider of
services related to the insolvent self-insurer's workers' compensation
obligations, to the extent those claims remain unpaid, including but not limited
to medical providers or attorneys representing either the insolvent self-insurer
or claimants.
34-9-386.
(a)(1)
The board of trustees shall, commencing January 1, 1991, assess each participant
in accordance with paragraph (2) of this subsection. Upon reaching a funded
level of $10 million
net of all
liabilities, all annual assessments
against participants who have paid at least three prior assessments shall cease
except as specifically provided in paragraph (4) of this
subsection.
(2)
Assessment for each new participant in the first calendar year of participation
shall be
$4,000.00
$8,000.00.
Thereafter, assessments shall be in accordance with paragraphs (3) and (4) of
this subsection.
(3)
After the first calendar year of participation, the
annual
assessment of each participant shall be made on the basis of a percentage of the
total of indemnity
and
medical benefits paid by, or on behalf of,
each
the
participant during the previous calendar year. Except as provided in paragraph
(2) of this subsection for the first calendar year of participation and
paragraph (4) of this subsection, a participant will
not
be assessed
at any one
time an amount in excess of 1.5 percent of
the medical
and indemnity benefits paid by that
participant during the previous calendar year or
$1,000.00
$2,000.00,
whichever is greater. The
total
maximum
amount of
annual
assessments
under this
paragraph, not including those
set
out
special
assessments provided for in paragraph (4)
of this subsection, in any calendar year against
any
one
a
participant shall
not exceed
the amount of $4,000.00
be
$8,000.00.
(4)
If after
the full funded level of $10 million has been
attained, the fund is reduced to an amount
below
$7
$5
million net of
all liabilities as the result of the
payment of claims, the administration of claims, or the costs of administration
of the
fund,
the board of trustees
shall
may
levy a special assessment
in
proportion to the
against
participants upon approval by the board, according to the same procedure
for assessment
provided
for
set
forth in paragraph (3) of this
subsection,
of the
participants in an amount sufficient to
increase the funded level to
$7
$5
million net of
all liabilities; provided, however, that
such special assessment in any calendar year against any one participant shall
not exceed
the amount
of $10,000.00
$8,000.00.
(5)
Funds obtained by such assessments shall be used only for the purposes set forth
in this article and shall be deposited upon receipt by the board of trustees
into the fund. If payment of any assessment made under this article is not made
within 30 days of the sending of the notice to the participant, the board of
trustees is authorized
to do any or
all of the following:
proceed in
court for judgment against the participant, including the amount of the
assessment, the costs of suit, interest, and reasonable attorneys' fees or
proceed directly against the security pledged by the participant.
(A)
Levy fines or penalties;
(B)
Proceed in court for judgment against the participant, including the amount of
the assessment, fines, penalties, the costs of suit, interest, and reasonable
attorneys' fees;
(C)
Proceed directly against the security pledged by the participant for the
collection of same; or
(D)
Seek revocation of the participant's insured status.
(b)(1)
The fund shall be liable for claims arising out of injuries occurring after
January 1, 1991; provided, however, no claim may be asserted against the fund
until the funding level has reached $1.5 million.
(2)
All
active
participants shall be required to maintain surety bonds or the board of trustees
may, in its discretion, accept any irrevocable letter of credit or other
acceptable forms of security in the amount of no less than
$100,000.00
until the board, after consultation with the board of trustees, has determined
that the financial capability of the trust fund and the participant no longer
warrants any form of security
$250,000.00.
In addition, each active participant shall be required to purchase excess
insurance for statutory limits with a self-insured retention specified by the
board, and the excess policy shall include the bankruptcy endorsement required
by the board and board of trustees. For participants who are no longer active,
security in an amount commensurate with their remaining exposure, as determined
by the board, shall be required until all self-insured claims have been closed
and all applicable statutes of limitation have
run.
(c)
A participant who ceases to be a self-insurer shall be liable for any and all
assessments made pursuant to this Code section
as
for
so long as indemnity
or medical
benefits are
compensation
is paid for claims which originated when
the participant was a self-insurer. Assessments of such a participant shall be
based on the indemnity
and
medical benefits paid by the participant
during the previous calendar year.
(d)
Upon refusal to pay assessments, penalties, or fines to the fund
when
due
or upon
refusal to comply with a board order increasing
security, the fund may treat the
self-insurer as being in
noncompliance
default
with this chapter and the self-insurer shall be subject to revocation of its
board authorization to self-insure
and forfeiture
of its security.
34-9-387.
(a)
The board of trustees shall have the right and
obligation
duty
to obtain reimbursement from any participant for
payment
of compensation obligations in the amount
of the participant's compensation obligations assumed by the board of trustees
and paid from the fund by the board of trustees as directed by the board,
including, but not limited to, claims for all benefits and reasonable
administrative and legal costs. The amount of the claims for reimbursement of
reasonable administrative and legal costs shall be subject to the approval of
the board of trustees.
(b)
The board of trustees shall have the right and obligation to use the security
deposit of any participant, its excess insurance
carrier
coverage,
and of any other
guarantor
guarantee
to pay the participant's workers' compensation obligation assumed by the board
of trustees, including reasonable administrative and legal costs. The amount of
the claims for reimbursement of reasonable administrative and legal costs shall
be subject to the approval of the board of trustees.
(c)
The board of trustees shall be a party in interest in any action or proceeding
to obtain the security deposit of a participant for the payment of
its
the
participant's compensation obligations, in
any action or proceeding under the participant's excess insurance policy, and in
any other action or proceeding to enforce an agreement of any security
deposit,
or captive
or excess insurance
carrier,
and from any other
guarantor
guarantee
to satisfy such obligations.
The fund is
authorized to file a claim against a bankrupt participant or the praticipant's
agents and seek reimbursement for any payments made by the fund on behalf of the
participant pursuant to this chapter. The fund is subrogated to the claim of
any employee whose benefits are paid by the fund. Further, the fund shall have
a lien against any reimbursement payments the participant is entitled to from
the Subsequent Injury Trust Fund in an amount equal to the payments made by the
fund to satisfy the participant's liability for workers' compensation
benefits.
34-9-388.
(a)
It shall be the duty of the board to report to the board of trustees when the
board has reasonable cause to believe that any participant examined or being
examined may be in danger of insolvency.
(b)
The board shall, at the inception of a participant's self-insured status and at
least annually thereafter, so long as the participant remains self-insured,
furnish the board of trustees with a complete, original bound copy of each
participant's audit performed in accordance with generally accepted
auditing
accounting
standards by an independent certified public accounting firm, three to five
years of loss history, name of the person or company to administer
claims,
and any other pertinent information submitted to the board to authenticate the
participant's self-insured status. The board of trustees may contract for the
services of a qualified certified public accountant or firm to review, analyze,
and make recommendations on these documents. All financial information submitted
by a participant shall be considered confidential and not public
information.
(c)
The board of trustees shall make reports and recommendations to the board upon
any matter germane to the solvency, liquidation, or rehabilitation of any
participant. The board of trustees shall examine the same documents as required
in subsection (b) of this Code section. Such reports and recommendations shall
not be considered public documents.
(d)
The board of trustees shall have the authority to review all applications for
self-insurance and shall make recommendations to the board concerning the
acceptance of the prospective self-insurer. If the board rejects in part or in
whole the recommendations of the board of trustees, the board shall give written
notice to the board of trustees ten days prior to accepting the application for
self-insurance.
34-9-389.
The
State of Georgia shall not be responsible for any debts incurred as a result of
the operation or administration of this fund."
SECTION
5.
All
laws and parts of laws in conflict with this Act are repealed.