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Reid V. Georgia Building Authority: Examining The Claimant’S Burden Of Proof In Requests For Catastrophic Designation

Ryan V. Klee - rklee@deflaw.com

            To receive a catastrophic designation under the current version of O.C.G.A. § 34-9-200.1 (g)(6) a Claimant has the burden of proving both “prongs” under the statute.  Specifically, they must show that the injury prevents them from being able to perform 1) their prior work; and 2) any work available in substantial number within the national economy for which the Claimant is otherwise qualified.  O.C.G.A.  § 34-9-200.1 (g)(6).  

            In defending such cases, it is critical for the Employer/Insurer to understand what specific criteria the State Board looks at in designating a case catastrophic. In Reid v. Georgia Building Authority, 283 Ga. App. 413 (2007), the Georgia Court of Appeals shed light on the type of evidence, which will qualify as “competent” and is required to be put forward by the Claimant to receive a catastrophic designation.   Specifically, in Reid, the Court of Appeals discussed the second prong of a request for catastrophic designation: whether the Claimant’s injury prevents them from performing work available in substantial numbers within the national economy for which they are otherwise qualified. 

            In Reid, the 66 year-old Claimant sustained a compensable hand injury in 2000 while working as a housekeeper, and ultimately sought to have her injury designated as catastrophic under O.C.G.A. § 34-9-200.1(g)(6).  The Employer contested the designation, and the case went to a hearing where the Administrative Law Judge (ALJ) concluded the Claimant’s injury was catastrophic.  The Appellate Division affirmed the ALJ’s ruling.  However, the Superior Court reversed the decision of the Appellate Division finding there was no competent evidence set forth by the Claimant’s attorney to prove the second prong of a request for catastrophic designation.

            On appeal, the Court of Appeals agreed that there was no dispute the Claimant was unable to perform her prior work as a housekeeper.  However, they disagreed that the Claimant met the second prong, and therefore denied her request for catastrophic designation.

            To prove the second prong of her request for a catastrophic designation, the Claimant relied on the testimony of a physical therapist.  In her evaluation of the Claimant, the physical therapist performed several upper extremity tests to determine the Claimant’s suitability to work in the Department of Labor’s job description for a maid.  Due to the Claimant’s pain and difficulty performing the tasks set forth in the test, the physical therapist concluded the Claimant could work at a sedentary job for four hours per day and could possibly increase to an eight hour day eventually.  Other than the physical therapist’s testimony, the only other evidence presented by the Claimant to satisfy the second prong of her catastrophic request was the Claimant’s own, self-serving testimony that she had “looked for work.”

            Most crucial to the Court of Appeals was that the Claimant never presented any expert witness or other evidence regarding the availability of work in the national economy for which the Claimant was otherwise qualified.  The only testimony, which was possibly on point to this second prong was the Claimant’s statement that she “looked for work.”

            According to the Court of Appeals, the ALJ exceeded its authority in extrapolating from this one statement that she satisfied her burden of proof regarding the unavailability of jobs for which she is “otherwise qualified for.”  However, the Court of Appeals noted that there was no competent evidence in the record regarding the Claimant’s training, skill level, or education.  The Claimant’s own conclusory statement did not satisfy this standard.  Most importantly, the Claimant presented no evidence of a lack of work available in the national economy for which the Claimant is otherwise qualified.

            The Court of Appeals held the State Board may not reach a conclusion regarding the unavailability of work in the national economy without competent evidence in the record.  Competent evidence in this context is more than just a statement that the Claimant “looked for work.”  Rather, the Claimant could have used a vocational rehabilitation expert to show that jobs she could perform were unavailable.

            The lesson from Reid is that the Employer/Insurer needs to be aware of the evidence required by a Claimant to prove their injury is catastrophic.  From an Employer/Insurer standpoint, it provides guidance on the type of evidence the Employer/Insurer must be prepared to attack at a hearing. Specifically, the Claimant’s own testimony will likely not suffice to carry her burden before the ALJ.  At a bare minimum, a Claimant must show that they unsuccessfully attempted to obtain work with their restrictions.  This would support an inference that such jobs are unavailable.  If the testimony on this issue is particularly vague, as the case was in Reid, then it would not qualify as competent evidence, and, therefore not support a catastrophic designation.

            In defending against catastrophic requests, the Employer/Insurer must delve deep into the specifics of a Claimant’s work search.  When a Claimant is able to testify to the reasons why they are unable to find work, then a vocational rehabilitation expert and labor market survey can be crucial and necessary tools to use in demonstrating the Claimant is in fact capable of performing work which she is otherwise qualified that exists in substantial numbers in the national economy.  This would help defeat a catastrophic request.  Critical to this determination are specific questions related to the Claimant’s training, skill level, or education By doing so, the Employer/Insurer will hold the Claimant to its burden of proof in catastrophic cases and ensure they are putting forward “competent” evidence.

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