Trial Notebook: Catastrophic (Workers Compensation)

Improving a catastrophic case the burden rests on the claimant. The Court of Appeals holds that the Board may not reach a conclusion in the absence of competent evidence that the employee is unable to perform any work available in substantial numbers within the national economy. Because the Workers' Compensation Act is in derogation of common law its provisions must be strictly construed. Employee must present some competent evidence that he or she is unable to perform any work available in substantial numbers within the national economy. At a bare minimum, this requires some matter that Reid has unsuccessfully attempted to obtain employment within her limitations which supports an inference that such jobs are unavailable. All cited in Reid v. Georgia Building Authority, 283 Ga. App. 413, 641 S.E.2d 642 (2007).

Employer represents that coverage is only in North Carolina and does not work in any other state. See First Quality Maintenance, et al. v. Victor Trigueros, et al., unreported, A02A2836 (2003).

Catastrophic Designation

Catastrophic Designation to continue TTD benefits much request a hearing within 2years of last date of receiving income benefits. Employee injured his back in 1994 and after surgeries and consistent pain his doctor took him off work in May 2004. Kroger paid him TTD when he couldn't work and TPD when he had reduced work, but by 2001 he had exhausted all his TPD. In August 2003 he filed a WC-14 seeking TTD or TPD but did not seek catastrophic designation. In April 2006, he filed a WC-RICATEE for catastrophic designation but the ALJ found that his request was barred because it had not been filed within two years of the last date of receipt of income benefits and the Court of appeals affirmed. The Court held that a request for a catastrophic injury designation constitutes a request for change in condition and had to be made within two years from the date of his last receipt of benefits. O.C.G.A. § 34-9-104(b). The Court also held that the 2003 filing of a WC-14 did not toll the statute of limitations because it did not request catastrophic designation. Cert Pending in Georgia Supreme Court. See The Kroger Company et al. v. Wilson, 301 Ga. App. 342, 687 S.E.2d 586 (2009).
Claimant's filing a form WC-RICATEE constitutes application for additional TTD benefits under O.C.G.A. § 34-9-104(b), tolling the two year statute of limitations. Following the plaintiff's compensable accident in 1996, she received TTD benefits for 400 weeks from the date of her injury (maximum period allowable by O.C.G.A. § 34-9-26). Within two years of exhausting her TTD benefits, she files a Form WC-RICATEE requesting catastrophic designation on July 25, 2005. The form did not specifically ask for additionally TTD benefits. The employer and insurer requested a hearing, objecting to the catastrophic request and the Board found the claimant catastrophically injured. However, the Board did not specifically address whether she was entitled to additional TTD benefits. Appellants agreed to give claimant rehabilitation benefits but on December 17, 2007 she requested a hearing because her TTD benefits had not been reinstated. The State Board and Court of Appeals held that an application for catastrophic designation via WC-RICATEE is adequate to toll the statute of limitations even without a specific request for additionally TTD benefits. See Georgia Institute of Technology v. Hunnicutt, 303 Ga. App. 536, 694 S.E.2d 190 (2010).

Catastrophic Injury

This is a case that went to the Administrative Law Judge and was thought to be catastrophically reversed by the Full Board and affirmed by the Superior Court. See Davis v. Carter Mechanical, Inc., 272 Ga. App. 773, 612 S.E.2d 879 (2005). O.C.G.A. § 34-9-200.1(g)(6).

SHOWING: "Such a nature in 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". Notice that Davis is unable to perform his prior job.

PRIOR WORK EXPERIENCE: Jobs requiring physical labor that he can no longer perform. Two operations of his knee last report furnished by his doctor was October 27, 2001 imposing new restrictions upon his lifting in excessive of 50 pounds, chronic excessive bending, stooping and squatting. Recommended sedentary only. April 4, 2002 FCE shows maximum work capacity within the medium to medium heavy range which entailed no heavy lifting over 50 pounds. The FC also recommended that he change positions from standing to sitting every 30 minutes. FC list some restrictions on kneeling, lifting, climbing and repetitive squatting. It does not specifically list any restrictions upon bending.

2001 Doctor signed a letter indicating that he agreed with the FCE. Davis's expert - William Thompson testified at the hearing before the ALJ that he interviewed Davis and reviewed the medical records, reviewed the FC and conformed a vocational assessment and conducted several test to measure Davis' achievements, intellectual aptitudes, educational level and temperament. In addition to the physical restrictions listed in the medical reports to the FCE, Thompson's test indicated that Davis's reading comprehension is at a fourth-grade level and his vocabulary is in seventh grade level. He spells at a third grade level and functions at a high school level in math. His IQ score is 87.

Thompson testified that Davis would have trouble filling out a job application because he cannot read and write well. He also said that Davis would need help in reading about job opportunities and filling out applications. He said that he may find it difficult to succeed at any job that calls for salesmanship, supervising others, communication skills, managerial skills, public relations skills, and interviewing skills, and that no work was available in the economy.

Carl Dye, expert for Carter Mechanical testified that he prepared a labor market survey and a list of jobs reflecting a substantial number of jobs available on the national economy that Davis was capable of performing. In preparing this reports, Dye relied primarily on Davis's medical reports, his deposition testimony and the FCE and he took into consideration Davis's age, occupation, training and limitations as defined in those documents, specifically he understood Davis's restrictions were from medium to light heavy work lifting up to 50 pounds and no kneeling, crouching or climbing. Dye relied upon the evaluation of the FCE that Davis can stand from 64 to 100 percent of the day. He did not believe that the recommendations that Davis's ultimately sitting and standing through the day would move Davis from the medium to the light duty restrictions. Dye searched for entry-level jobs with some on the job training with light, sedentary light and medium work categories. Taking into account Davis's age, occupation, and training limitations, he determined that the jobs he located included positions for cashier, security guards and installation clerks were available in a substantial numbers on the national economy. He clarified that when he used the word available, he meant the jobs exist not that they represent job openings. He stated that Davis could perform the jobs and could perform a full range of the functions.

Talks about the difference in the existence of jobs and the availability of jobs as the statute requires. "Although the Georgia Legislature adopted somewhat different language from that in the Federal statute, it is apparent that the amendment was an effort to bring the two provisions in line. In fact, in the May 20, 2003 report of the Governor's - Workers' Compensation Review Commission indicates that this amendment, incorporates the definition of total disability used in the Federal Social Security System." "Accordingly, we find that the legislature's use of the term availability was not intended to require a showing beyond proof that work exist within substantial numbers within the national economy."

The expert Dye did not consider all of the appropriate factors in identifying jobs, for which Davis was qualified. The court said since Dye did not consider these, it just went to the weight of his testimony. See Federal Opinions on Existence of Jobs and Assessment of Individual's Abilities in Heckler v. Campbell, 461 U.S. 458, 103 S.C. 1952, 76 L.E.2d 66 (1983). See also Barnhart v. Thomas, 540 U.S. 20, 124 S.C. 376, 157 L.E.2d 333 (2003).

Davis asserts that the expert Dye properly considered accommodating jobs in his analysis. The federal courts have determined that the Social Security Administration does not consider accommodated jobs to be relevant in determining whether to award disability benefits unless there is proof that such jobs exist in substantial numbers in the national economy. Thus, in analyzing whether an individual is incapable of performing his previous jobs, the Social Security Administration does not consider whether an individual will be able to perform that job given the necessary accommodations from the employer. A finding of an ability to do past work is only appropriate if the claimant retains the capacity to perform either the actual or functional demands of the job duty on the particular past relevant job or the functional demands and job duties of the occupation are as generally required through the national economy. See Swanks v. Washington Metropolitan Area Transit Authority, 116 F3d 582, 585 (D.C. Cir. 1997).

The Administrative Law Judge relied on the opinion of the family physician for a claimant seeking catastrophic designation of his case. The employer and their insurer sent claimant to Dr. Lee Kelley, Dr. Thomas Dopson and Dr. Ezequiel Cassinelli. All three IME doctors concluded that claimant had no residual problems because of his back. The case was appealed to the full Board of the State Board of Workers' Compensation and the full Board reversed indicating that the preponderance of evidence supported the three IME doctors that there was no problem and the case did not meet catastrophic designation. In 1994 the legislature amended O.C.G.A. § 34‑9‑103(a) and stated that the full Board or appellate division reviews the decisions of the ALJ's findings of fact and they shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the record. The appellate division can no longer hear additional evidence but you must make a decision on the record established in the trial division if the appellate division concludes that the ALJ Award does not meet the statutory requirement of preponderance of admissible evidence then the appellate division may substitute its own alternative findings for those of the ALJ and enter an Award accordingly. See Bonus Stores, Inc. et al. v. Hensley, 2011 WL 1238420, (Case No. A11A0307 decided April 5, 2011).
Catastrophic Injury: Age as a Factor

This Court has noted that under the comparable federal provision, the Supreme Court has held that age is a factor to consider in determining whether other jobs exist for which the employee is qualified. We note that the United States Supreme Court has held that consideration of the comparable federal provision requires an assessment of an individual's abilities in order to determine whether jobs exist that a person having the individual's qualifications could perform. This would include consideration of the individual's physical ability, age, education, and work experience. See Davis v. Carter Mechanical, 272 Ga. App. 773, 612 S.E.2d 879 (2005). All cited in Caswell, Inc. v. Spencer, 280 Ga. App. 141, 633 S.E.2d 449 (2006).

Definition "and" "or" in 1995 Version

Definition of "and" instead of "or" in the 1990 filed amendment. Court of Appeals holds that the "or" issue as making the Statute 34-9-200.1(g)(6) allowing for only one of two events. In this situation, if the employee is unable to return to his prior employment when he meets the catastrophic designation. See Rite-Aid Corporation, et al. v. Davis, 280 Ga. App. 522, 634 S.E.2d 480 (2006).

Denial of Catastrophic Award Based on Opinion of IME Doctor

The Court of Appeals reversed a Superior Court decision that reversed the Full Board and the ALJ determining that a case was not catastrophic. This case is somewhat alarming because the claimant had had three back surgeries, was determined not able to work by the authorized treating doctor, an IME doctor determined that he could do sedentary work and that it did not meet the requirements. Jered Industries, Inc. v. Pearson, 261 Ga. App. 373, 582 S.E.2d 522 (2003).

Res Judicata/Latches

Hearing in 2003 finding case catastrophic. Two years later employer asked for change in condition which was denied by Board. Also asked for credit for 20 weeks of wages paid in lieu of comp under O.C.G.A. § 34-9-243. Court of Appeals holds that doctrine of res judicata applies. They failed to raise the issue at the first hearing and could not raise it later. This appears to be more of a latches issue. See Vought Aircraft Industries, Inc., et al. v. Faulds, 281 Ga. App. 338, 636 S.E.2d 75 (2006).

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