GA Code § 34-9-386 (2021)
2021 Georgia Code|Title 34 - Labor and Industrial Relations|Chapter 9 - Workers' Compensation|Article 10 - Self-Insurers Guaranty Trust Fund|§ 34-9-386. Assessment of Participants; Liability of Fund and Participants for Claims; Revocation of Participant's Authority to Be Self-Insured

    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 $15 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.   Assessment for each new participant in the first calendar year of participation shall be $8,000.00. Thereafter, assessments shall be in accordance with paragraphs (3) and (4) of this subsection.   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, 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 be assessed 1.5 percent of the medical and indemnity benefits paid by that participant during the previous calendar year or $2,000.00, whichever is greater. The maximum amount of annual assessments under this paragraph, not including those special assessments provided for in paragraph (4) of this subsection, in any calendar year against a participant shall be $8,000.00.   If the fund is reduced to an amount below $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 may levy a special assessment against participants upon approval by the board, according to the same procedure for assessment set forth in paragraph (3) of this subsection, in an amount sufficient to increase the funded level to $5 million net of all liabilities; provided, however, that such special assessment in any calendar year against any one participant shall not exceed $8,000.00.   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, penalty, or fine 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:   Levy fines or penalties;   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;   Proceed directly against the security pledged by the participant for the collection of same; or   Seek revocation of the participant's self-insured status.         The fund shall be liable for claims arising out of injuries occurring after January 1, 1991; provided, however, that no claim may be asserted against the fund until the funding level has reached $1.5 million.   All active participants shall be required to maintain surety bonds or the board of trustees may, in its discretion, accept an irrevocable letter of credit in the amount of no less than $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.     A participant who ceases to be a self-insurer shall be liable for any and all assessments, penalties, and fines made pursuant to this Code section for so long as indemnity or medical benefits are 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.   Upon refusal to pay assessments, penalties, or fines to the fund or upon refusal to comply with a board order, the fund may treat the self-insurer as being in 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.     (Code 1981, §34-9-386, enacted by Ga. L. 1990, p. 770, § 1; Ga. L. 1991, p. 94, § 34; Ga. L. 1995, p. 638, § 3; Ga. L. 2010, p. 126, § 4/HB 1101; Ga. L. 2016, p. 287, § 11/HB 818.)    The 2016 amendment,  effective July 1, 2016, substituted "$15 million" for "$10 million" in the second sentence of paragraph (a)(1); inserted ", penalty, or fine" in the second sentence of paragraph (a)(5); substituted "self-insured" for "insured" in subparagraph (a)(5)(D); inserted "that" in the middle of paragraph (b)(1); substituted "accept an irrevocable letter of credit" for "accept any irrevocable letter of credit or other acceptable forms of security" in the first sentence of paragraph (b)(2); inserted ", penalties, and fines" near the middle of the first sentence of subsection (c); and deleted "increasing security" following "comply with a board order" near the beginning of subsection (d).   Law reviews.   - For annual survey of law on labor and employment law, see 62 Mercer L. Rev. 181 (2010).   JUDICIAL DECISIONS    Cited in  In re Suwannee Swifty Stores, Inc., 223 Bankr. 834 (Bankr. M.D. Ga. 1998).   OPINIONS OF THE ATTORNEY GENERAL   Effect of bankruptcy on letter of credit.    - An irrevocable letter of credit payable to the Self-Insurer's Guaranty Trust Fund pursuant to O.C.G.A. § 34-9-386(b)(2) is not "property of the estate" as defined in 11 U.S.C. § 541 and, therefore, would not come under the control of the trustee in bankruptcy. 1990 Op. Att'y Gen. No. 90-20.