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How Late Is Too Late To File For Catastrophic Benefits? Case Update On The WC-R1catee And The Change Of Condition Statute.

May 02, 2010 BY Def Admin

            Under O.C.G.A. § 34-9-104(b), a claim recommencing benefits for a change of condition is time-barred if it is not filed within two years from the last payment of income benefits.  While is usually straightforward, it certainly has not been in the context of when a request for catastrophic designation has been filed by a Claimant in the months and years after benefits were originally cut off. 

            Last year, the Court of Appeals interpreted O.C.G.A. § 34-9-104(b) in that specific context in the case ofWilliams v. ConAgra Poultry of Athens, Inc., 295 Ga. App 744, 673 S.E.2d. 105 (2009)(cert. denied).  The Court started by citing Cobb County School District v. Barker, for the proposition that the catastrophic designation of an injury is considered a status.  271 Ga. 35, 39, 518 S.E.2d 126, 130 (1999).  Therefore, the filing of a WC-R1CATEE and/or a WC-14 hearing request, asking that a Claimant be classified as catastrophic so that his or her indemnity benefits can be restarted, must be done within two years of the last payment of indemnity benefits. 

            In Williams, a claimant injured her neck and shoulders while working at the ConAgra plant.  She ended up receiving the maximum 400 weeks of benefits, with payments ending in April 2001.  She filed a request in March 2002 for her claim to be designated catastrophic.  It was denied.  She then filed another request in April 2003.  That was denied as well, but the Board said she could resubmit if she showed evidence of her work restrictions.  She did not appeal either decision.  Instead Claimant filed a third catastrophic request with the work restriction information on October 2003, 2 years and 6 months after her last benefits were paid.  ConAgra filed a hearing request on the issue, but subsequently agreed to pay medical benefits only, leaving the issue of indemnity benefits up to the ALJ.  The ALJ cited O.C.G.A. § 34-9-104(b) in his decision to deny benefits based upon that statute of limitations.  The full Board, Superior Court and Court of Appeals affirmed. 

            However, simply requesting a hearing for benefits is not enough.  Williams was used as precedent forKroger Company v. Wilson.  301 Ga. App. 345, 687 S.E.2d 586 (2009)(cert. denied).  In that case a Claimant injured his back while working as a driver for the Employer in 1994.  He subsequently received temporary total disability benefits and then temporary partial benefits (once he returned to light duty work) until September 2001, when his 350 weeks of benefits were exhausted.  He continued to work for the employer at light duty even after he stopped receiving benefits. 

            Claimant then requested a hearing seeking indemnity benefits on a WC-14 in August 2003, one month before the statute of limitations was to run.  However nowhere on the form did Claimant request a catastrophic designation, which was the only status left for him that would have put him back on benefits.  He eventually withdrew his request, but then filed a WC-R1CATEE, in April 2006, over two years later after benefits ceased. 

            The ALJ found the claim to be time-barred because he did not specifically request a catastrophic designation within the two years.  Claimant argued that he did apply for benefits within the two year limitations period and since being deemed catastrophic was required for him to receive benefits, the catastrophic request should be assumed.  However the ALJ disagreed, partially because there was nothing on his timely WC-14 actually requesting a catastrophic designation.  The Court of Appeals noted that if filing a fairly generic WC-14 hearing request tolled the O.C.G.A. § 34-9-104(b) statute of limitations without specifically requesting a catastrophic designation, there effectively would not be a statute of limitations anymore. 

            Most recently in April, the Court of Appeals clarified the statute of limitations for indemnity benefits under a catastrophic request.  Ga. Inst. of Tech. v. Hunnicutt, 2010 Ga. App. LEXIS 369 (Apr. 7, 2010).  In that claim, the employee suffered a 1996 job injury and received her full allotment of benefits, ending in 2004.  She then filed a WC-R1CATEE within 2 years as required by O.C.G.A. § 34-9-104(b).  However, Claimant did not file a WC-14 request for hearing for temporary total disability benefits until December 17, 2007, over a year outside the statute.  The Employer, relaying on the above cited cases and the statute argued that the request for TTD benefits was barred because it was filed outside the two-year limitation.  Claimant argued that the WC-R1CATEE implicitly incorporated a request for TTD benefits.  The ALJ, the Board and the Superior Court all agreed with the Claimant, and ordered that the request was timely and that benefits should be started up from February 1, 2004 and continuing. 

            The Court of Appeals also agreed.  It found that the filing of the WC-R1CATEE was a request to designate her injury as catastrophic.  As such, this was a request for a ‘change of condition’.  Even though Claimant did not technically request the indemnity benefits specifically, she did request a change in condition implying that she wanted additional benefits, and this was enough for the Court of Appeals. 

            So what does this line of recent cases tell us?  As an employer or insurer, it is extremely important to keep careful records of when benefits are terminated.  Even if a catastrophic request is filed two years and one day after benefits are terminated, this is enough under Williams to avoid costly litigation and a potentially very costly catastrophic designation. 

            The cases also tell us that just filing a WC-14 is not enough.  Wilson does not necessarily tell us whether a Claimant could get benefits if he or she just files a WC-14 and states in the ‘Other’ section that it is a request for hearing on a catastrophic designation, or if a WC-R1CATEE is actually required.  However filing a WC-R1CATEE within the two year limitation period is enough under Hunnicutt, regardless of whether there is a hearing request or an explicit request to recommence TTD. 

            Even if a Claimant does file a WC-R1CATEE in a timely fashion, he or she still may not fall within the statute of limitations.  In a situation such as Williams where an ALJ denies Claimant’s request for catastrophic designation but then Claimant subsequently reapplies, the earlier request does not toll the statute of limitations, and each request must be within the two years.  What the Claimant in Williams should have done is appeal the decision rather than waiting over two years to file a request that may have otherwise been granted.  A costly mistake!

            Overall these cases give us a guideline about how to approach a stale claim with newly filed catastrophic benefits requests.  If that request for a catastrophic designation is over two years after any previous indemnity payment, the claims should be denied no matter what is filed.  If no timely WC-R1CATEE is filed but an otherwise timely WC-14 does not specifically request a catastrophic designation, the claim should be controverted after the two year statute of limitations lapses.  Finally, if a WC-14 requesting catastrophic benefits is timely filed but there is no accompanying WC-R1CATEE, this should still be controverted, and although it may be a losing argument, it is at least a viable one that has not yet been determined by the higher courts.  However this trilogy of cases goes a long way to clarify how long is too long for a Claimant to revive his benefits and how long an Employer or Insurer must wait to determine if a claim is in fact dead and gone.

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

Editorial Board:

H. Michael Bagley
(Editor-in-chief)