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Catastrophic Designation: A Pendulum Swing Toward The Employer

Mark E. Murray

Several years ago, many of those who work and operate within the Georgia Workers’ Compensation arena may have suggested that the prospect of receiving a catastrophic designation of a work-related injury under O.C.G.A. § 34-9-200.1 was inherently favorable to an injured employee. This was primarily so due to the procedure by which such a designation could be achieved. Things changed significantly in July of 2003, however, with the revision of Board Rule 200.1(g)(3) which, by many accounts, restored a balance to the catastrophic designation process (please see Mark E. Murray, Catastrophic Designation: A Return To Balance: Revised Board Rule 200.1(g)(3), DREW ECKL & FARNHAM JOURNAL, Volume 15, No. 90, Nov. 2003). While there was no significant disruption to this equilibrium for nearly two years thereafter, a recent decision of the Court of Appeals of Georgia may have the effect of now tipping the scales in favor of the employer and insurer.

Achieving Catastrophic Designation Under O.C.G.A. § 34-9-200.1

Per the provisions of O.C.G.A. § 34-9-200.1, an injured employee may have his or her entitlement to weekly indemnity benefits extended indefinitely beyond any statutory limitations if it can be established that the injury from which he or she suffers is ‘catastrophic’ in nature. While there are a number of per se injuries that qualify as catastrophic under the statute, most employees seek to achieve such a designation under O.C.G.A. § 34-9-200.1(g)(6). This subsection prescribes that an employee’s injury may be deemed catastrophic if the employee can prove that the “injury [is] of a nature and severity that prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified.” Thus, per the language of the subsection, an employee must show that (1) he or she is not able to return to work with the employer due to physical limitations incidental to the work injury, and that (2) there is no other available work suitable to those limitations.

When an injured employee files for catastrophic designation under the language of O.C.G.A. § 34-9-200.1(g)(6), it is almost invariable that the employer cannot provide a job position consistent with the work restrictions held by the employee. Consequently, the issue ultimately rests on with whether the employee can also prove that there is no other available work compatible with his or her restrictions. The term “work available in substantial numbers within the national economy,” as utilized in the statute, has long been a subject of contention between employees and employers. Employees have tended to be successful in achieving catastrophic designation, however, by submitting a broad-based labor market survey demonstrating a lack of ‘job openings’ conducive to his or her limitations.

Davis v. Carter Mechanical, Inc., 272 Ga. App. 773 (2005)

Employers have had a difficult time overcoming labor-market evidence submitted by employees, and many would suggest that this has led to a disproportionate number catastrophic decisions falling in favor of the employee. A recent decision of the Georgia Court of Appeals, however, has served to redefine the standard that must be met by employees when attempting to demonstrate a lack of “work available” per O.C.G.A. § 34-9-200.1(g)(6).

In Davis v. Carter Mechanical, Inc., 272 Ga. App. 773 (2005), an injured employee, Davis, filed for catastrophic designation suggesting that his injury qualified as such under the provisions of O.C.G.A. § 34-9-200.1(g)(6). Specifically, he suggested that his physical limitations, sedentary to light-duty, were such that he could find no compatible available work. In support of this position, he enlisted the services of a vocational expert who prepared a labor-market survey demonstrating that there were no suitable “job openings” available to the employee in substantial numbers within the national economy. Countering this evidence, the employer, Carter Mechanical, employed its own vocational expert who had prepared a similar study. While Carter Mechanical’s expert did not necessarily rebut the lack of job openings demonstrated by Davis’ expert, he offered evidence showing that there were, in fact, a substantial number of “jobs available” within the national economy that were consistent with the limitations held by Davis. In doing, Carter Mechanical argued that term “work available” as utilized in O.C.G.A. § 34-9-200.1(g)(6) did not require a showing of actual job openings by the employer, only proof that potential positions did exist within the national economy that Davis was capable of performing (regardless of whether those jobs were open for hire). The Court of Appeals ultimately agreed with Carter Medical and found in its favor, as it held that “the legislature’s use of the term “availability” was not intended to require a showing beyond proof that work exists in substantial numbers within the national economy.”

Effect of Davis v. Carter Mechanical, Inc.

The Davis v. Carter Mechanical case is certain to have a significant impact on catastrophic decisions as employer’s begin to utilize its holding. While it many times proved a difficult task for employer’s to locate job openings that would be suitable to an injured employee’s limitations, they no longer face that burden. They now only need prove that suitable jobs exist at a substantive level. Even where an employee has sedentary limitations, it should not be extremely difficult to show that a substantial number of seated jobs exist within the national labor market (the Court in Davis suggested that “cashiers” and “information clerks” could possibly be deemed “available” positions consistent with sedentary limitations). Whether this ruling will be curtailed in the future remains to be seen, but, in the interim, employer’s should use it to their advantage.

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