December 05, 2017 BY Terry Strawser
So How Did My "Dog" Case Become a Cat Case?
We’ve all had it happen. We think we have a case well positioned for settlement, when we receive a grossly inflated demand from opposing counsel with the explanation, “as you can see, this case is likely to be deemed Catastrophic.” What??! I evaluated it on a year of TTD, maximum. How can he say it is Catastrophic?
The definition of Catastrophic injury is found in O.C.G.A. Section 34-9-200.1(g). The statute provides that“Catastrophic injury” means any injury which is one of the following: 1) spinal cord injury involving severe paralysis of an arm, a leg, or the trunk; 2) Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage; 3) severe brain or closed head injury as evidenced by a) severe sensory or motor disturbances; b) severe communications disturbances; c) severe complex integrated disturbances of cerebral function, d) severe disturbances of consciousness, e) severe episodic neurological disorders, or f) other conditions at least as severe in nature as any condition provided in subparagraphs a through e of this paragraph; 4) second or third degree burns over 25 percent of the body as a whole or third degree burns to 5 percent or more of the face or hands; 5) total or industrial blindness; or 6)(A) any other condition of a nature and severity that prevents the Employee from being able to perform his or her prior work and any work available in significant numbers in the national economy for which he or she is otherwise qualified….”
As one might imagine, there is not much litigation over whether a case meets criteria in subsections (g)(1) through (g)(5). The disputes typically arise, and the abuse by Claimant’s lawyers typically involves, the “catch-all” definition of sub-paragraph (g)(6). This definition essentially incorporates the federal definition of Social Security disability. See, 42 U.S.C. Section 1382c(a)(3)(A), 1382c(a)(3)(B). The statute requires that the Claimant not only be unable to work in his or her prior employment, but in any job that exists in substantial numbers in the national economy. Thus, a Claimant must effectively either be on “no work” status, or have such limitations that there is no common job that they are able to perform, consistent with their work restrictions.
The statute was amended in 1992 to add subparagraph (g)(6), which at that time was drafted to expressly incorporate the Social Security definition of disability. This lead to debate as to whether an award of the Social Security Administration would be binding on the Board. Then, in 1995, the statute was amended to trace the language of the Social Security standard, but it included a reference to inability to perform his or her prior work or any work existing in substantial numbers in the national economy for which such employee is otherwise qualified.” This lead to a Court decision that a Claimant could qualify for catastrophic designation by merely showing that he could not perform his prior work. Rite Aid Corp. v. Davis, 280 Ga. App. 522 (2006). The legislature quickly rectified this discrepancy by amending the statute in 1997 to change the “or” to “and,” and require that the Claimant be unable to perform any such work. The code section was modified again in 2003 to provide that no presumption would arise from a ruling of the Social Security Administration that the Claimant was disabled, but that the ruling would be admissible, and would be given such weight as the ALJ deemed appropriate.
The statute does not provide a presumption based upon a disability award by the Social Security Administration. However, there are some important presumptions in the statute. First, there is a rebuttable presumption that exists during the first 130 weeks following the injury, that if a worker is released to return to work with restrictions by the authorized treating physician, the injury is not catastrophic. This presumption is rebuttable, and would be rebutted by the same evidence normally used to prove that the injury is catastrophic later on in the case. The presumption appears to be designed to prevent premature filing of catastrophic injury petitions in cases that are not clear-cut.
A second presumption is that a Claimant who has reached the age of eligibility for retirement, as defined in 42 U.S.C. Section 416(1), which is a sliding scale beginning at age 65 and moving to older ages for persons born in later years, is no longer catastrophically injured. This presumption is easily rebutted by testimony that the injured worker intended to work as long as they were able, in addition to the required proof of the severity of the injury and the availability of suitable work.
STATUTE OF LIMITATIONS
A petition for Catastrophic injury is governed by the two year statute of limitations applicable to change of condition petitions. Kroger Co. v. Wilson, 301 Ga. App. 345 (2009), cert. denied. The petition must be filed within two years of the last receipt of TTD or TPD benefits. The statute is not tolled by the filing of a WC-14 that seeks TTD or TPD only, and does not specifically request a finding of Catastrophic injury. Id.
EFFECT OF CATASTROPHIC DESIGNATION
A Catastrophic injury is not subject to the 400 week cap on temporary total disability benefits, but the Claimant in that case may receive the benefits for life, as long as they remain catastrophically injured. A finding of Catastrophic injury is subject to a change of condition request by the Employer, should circumstances change or the Claimant’s condition improve.
For injuries occurring on or after July 1, 2013, a Catastrophic injury designation eliminates the 400 week cap on medical benefits applicable to such injuries, and extends those benefits for life, as long as the Claimant remains Catastrophically injured.
Catastrophic designation also leads to the appointment of a rehabilitation supplier, although this appointment is not permanent and may be closed for good cause, upon a finding by the Board.
A Claimant requests Catastrophic designation through the filing of a WC-R1CATEE, which should include a history of the Claimant’s work for the last 15 years, a selection of arehabilitation supplier, and medical and/or vocational evidence supporting the claim. The Employer/Insurer has 20 days to object, by filing its opposition with supporting evidence, and/or by filing a hearing request seeking a determination. Claimants can, and often do, file their own hearing requests. If no hearing is requested, the Board issues an administrative decision, which then is subject to the 20 day appeal deadline for such decisions. Board Rule 200.1(g)(5).
So, how do we combat the Claimant’s assertion that the case is Catastrophic? The case typically turns on the medical evidence. A finding that the Claimant is capable of at least sedentary work is sufficient to support a conclusion that the Claimant is not catastrophically injured. Jered Industries, Inc. v. Pearson, 261 Ga. App 373 (2003). In that case, the Court was deciding the matter based on the older version of the statute which provided a presumption of disability where there was a Social Security disability award. So, the first step is to get the most favorable work status possible. The work status may come from the ATP or an IME physician. A finding that the Claimant is able to perform the full range of sedentary work, if accepted by the ALJ, is normally sufficient. However, we should be aware that the Claimant must be able to perform jobs which exist in substantial numbers in the national economy, for which the Claimant is otherwise qualified. Thus, if the Claimant is able to perform only sedentary work, but is unable to read, or has restrictions on use of the upper extremities (which most sedentary jobs require), or is unable to work a full time workload due to the injury, then the Claimant may still be found to be Catastrophically injured.
The testimony of a vocational expert is usually needed to identify jobs that the Claimant is able to perform, given their educational background, skills, and experience. The vocational expert will review the medical records, the deposition testimony of the Claimant, and other records in the file, and may personally interview the Claimant if allowed by counsel. The expert will perform a labor market analysis to determine the availability of jobs in the national economy that are within the Claimant’s restrictions and for which the Claimant is otherwise qualified. This typically involves research in the Dictionary of Occupational Titles, a reference manual compiled by the Federal Government which gives detailed analysis of jobs that are available in the national economy, including the functional capacity and skills required for each job as it is typically performed. Sometimes, computer programs such as Skilltran, are used by vocational experts as reference materials. The selection of a vocational expert and preparation of the expert are critical to our success. Also important is the cross examination of our opponent’s vocational expert. In Bonus Stores, Inc. v. Hensley, 309 Ga. App. 129 (2011), the claimant’s vocational expert opined, based on the treating physician’s opinion that the claimant was on no work status, that his injuries were catastrophic. However, the expert admitted on cross examination that if the Board found the defense physicians’ opinions that the claimant could work without restrictions to be credible, then he was not catastrophically injured. The Appellate Division reversed the ALJ’s decision, and found that the injury was not Catastrophic, based upon the findings of the employer’s physicians.
It is not necessary to show the actual availability of suitable jobs, only their existence in the national economy. Davis v. Carter Mechanical, 272 Ga. App. 773 (2005). The Board must base its ruling on medical and vocational expert evidence, and may not base its decision upon its own impression of the availability of jobs within the Claimant’s functional abilities. Reid v. Georgia Building Authority, 283 Ga. App. 413 (2007).
It is imperative to obtain the Social Security disability award, and, if allowed, the entire Social Security file. Some claimants will object to production of the entire file, so a motion may be necessary. In any event, a specific release from the Claimant is required in order to obtain the file. The Social Security file will contain detailed questionnaires about the Claimant’s medical history and functional capacity, complete medical records, including records pertaining to comorbidities, and may even contain IMEs or record reviews from physicians appointed by the Administration. These opinions can be used to supply functional capacity findings to support our vocational expert’s opinions as to the availability of suitable jobs.
As always, the Claimant’s testimony is critical. Even if the Claimant has been deposed in an “all issues” context, we will usually need to update the deposition to focus specifically on the Catastrophic injury petition. We would get a detailed work history (which we normally obtain through discovery in the all issues context), and ask sifting questions about the Claimant’s functional capacity. For example, is the Claimant able to perform such activities as cooking, cleaning, laundry, working on cars, et cetera? Is the Claimant able to dress, bathe, and groom herself? What are the Claimant’s cognitive abilities (reading books or magazine articles, watching TV shows and movies and following the plot)? We would also inquire as to the Claimant’s comorbidities, and obtain records from all treating physicians.
With thorough preparation and proper use of experts, we can be prepared to meet the challenges of a Catastrophic injury petition.
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.
H. Michael Bagley